0120162668
03-13-2018
Jerrold K.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jerrold K.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120162668
Agency No. 200I06752015105611
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 1, 2016, final decision concerning his equal employment opportunity (EEO) complaint. He alleged employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed as a Care Manager in the Integrated Health Service (HIS) office at the Agency's Orlando VA Medical Center facility in Orlando, Florida.
On November 17, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (58) when, on September 28, 2015, he was notified that he was not selected for a Nurse Manager position at the Orlando VA (OVA) Integrated Health System (IMS).
The pertinent record shows that Complainant began working for the Agency on April 5, 2015. Five months later, he applied for a new position. After he was notified that he was not selected for the position at issue, he resigned from the position for which he was initially hired.
Regarding the non-selection at issue, the record shows that, on June 8, 2015, the Administrative Officer of the HIS sent an email which notified employees that a named female employee would be assuming the role of Acting Nurse Manager. After some of the more senior nurses asked if the position was going to be posted for competition, management sent another email asking if any other Registered Nurses (RNs) would be interested in applying. The announcement stated the Agency was seeking "someone with a strong care management background and an ability to motivate and lead others."
On June 17, 2015, Complainant applied for the VN-3 Care Manager position, under Vacancy Number ZY-15-SS1464217. He submitted an extensive application, which included his resume. He noted that he had 15 years of nursing experience and had served as an Inpatient Nurse Case Manager. As further background, Complainant is a Veteran, who served twenty years in the Navy and had the 5 points Veterans Preference consideration.
He did not receive a response from the email when he sent in his documents for the 30-day detail. He was not interviewed. He was notified on September 28, 2015 that he was not selected.
Complainant acknowledged that he was not aware of the selectee's qualifications, but was informed by the Human Resources representation that the selectee was deemed more qualified, based on the matrix score. Complainant received a score of 22, which fell below the cut-off score for an interview. Others outside of Complainant's protected group were also screened out, because their assigned scores eliminated them from the interview process.
According to the scoring matrix, the selectee was deemed better qualified. A younger female was offered the permanent position. She had been detailed as the Nurse Manager for Community Health. The record is unclear as to whether she had been serving in an acting capacity in the position since June 15, 2015.
The selecting official testified that she had no recollection of Complainant's application and that his name would not have appeared in the list of candidates for interview.
He stated that, the fact that the management team presented the selectee as their selection in June of 2015, without looking at other candidates, led him to believe the management team had pre-selected the candidate and prepared her to fit the qualifications. There were no men in leadership roles.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Agency Decision
The Agency found that Complainant failed to show that he was discriminated against as alleged. The Agency reasoned that the selectee had more relevant qualifications and that Complainant's qualifications were not so plainly superior as to warrant a finding of pretext. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant restated his belief that the three management officials "wanted only [the selectee] for the position and took the steps necessary to accomplish their goal."
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Section 717 of Title VII requires that federal agencies make all personnel actions free of race or sex discrimination. See 42 U.S.C. � 2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on race or sex"). Similarly, Section 633(a) of the ADEA requires that all personnel actions be made free of age discrimination. A complainant carries the initial burden of establishing that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In this case, the Agency articulated a legitimate reason for its decision (that the Agency chose the candidate who was rated highest by the panel).
Further, we find that Complainant failed to show that the stated reason for the non-selection (rated below the cut-off score) to be a pretext for discrimination. To the extent that the panel may have failed to credit him for his nursing expertise, there is no evidence that he was treated differently than the other candidates, both male and female, who were scored below the cut-off point for further consideration.
Therefore, based upon our review of the record, we find that Complainant has not met his burden of establishing that the alleged non-selection occurred because of his protected bases. Consequently, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tends to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 13, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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