0120102226
09-24-2010
Jessie Hudson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jessie Hudson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102226
Hearing No. 410-2009-00013X
Agency No. 2001-0508-2008102501
DECISION
On April 26, 2010, Complainant filed an appeal from the Agency's March 19, 2010, final order concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Health Technician, GS-7-5, at the Agency's Atlanta Veterans Affairs Medical Center in Decatur, Georgia. Telephonic Sworn Statement of Complainant at 3. Complainant applied for the position of Readjustment Counseling Therapist, GS-9/11, by personally delivering his application to Person A, Technical Career Field intern. Telephonic Sworn Statement of Person A at 6-8. Person A looked over Complainant's application while he sat in her office and informed Complainant that he did not have the minimum four years of experience as a counselor, readjustment counselor, therapist, or social worker. Id. at 12. Person A later had a third party look over Complainant's application to determine whether the application met the minimum qualification to be considered. Id. at 16. Person B, HR Specialist, GS-12, concurred with Person A's determination that Complainant did not meet the minimum qualifications for the position. Telephonic Sworn Statement of Person B at 9. Complainant was not referred for consideration for the Readjustment Counseling Therapist position. Referral Certificate. Thereafter, a selection was made and the selectee chosen had extensive experience as a social worker.
Complainant filed an EEO complaint dated July 14, 2008, alleging that the Agency discriminated against him on the basis of sex (male) when: on March 19, 2008, Complainant learned that he was not qualified by the Human Resources (HR) Specialist for the position of Readjustment Counseling Therapist, GS-101-9, Target 11, from Vacancy Announcement No. 08-100-FI, nor was he selected for the position.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on February 24, 2010. The Agency subsequently issued a final order fully implementing the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant claims the AJ lost her objectivity due to familiarity with the Agency's attorneys. Moreover, Complainant claims the AJ failed to consider that the intern should not have been trying to coerce him into not applying for the job at issue by telling him that he was not qualified.
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 EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Upon review, we find the issuance of summary judgment was appropriate as the record in this case was fully developed and there are no genuine issues of material fact. Despite Complainant's blanket assertion that the AJ lacked objectivity, we find no evidence of bias by the AJ. We find that the Agency correctly determined that Complainant had not demonstrated that he was subjected to discrimination based on his sex. The Commission finds that the agency articulated legitimate nondiscriminatory reasons for its actions. Specifically, the Agency determined Complainant was not qualified for the position since he did not have the requisite counseling experience that was necessary for a GS-9 Counseling Readjustment Therapist. Complainant has not shown that the Agency's articulated reasons for its actions are a pretext for prohibited discrimination.
CONCLUSION
Accordingly, the Agency's final order finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tend 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 24, 2010
__________________
Date
2
0120102226
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102226