0120170508
09-07-2018
Joey B.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joey B.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120170508
Hearing No. 560-2015-00023X
Agency No. 200306472014100958
DECISION
On November 7, 2016, 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 September 22, 2016, 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.
ISSUE PRESENTED
Whether there is substantial evidence in the record to support the Administrative Judge's determination that Complainant did not establish that his nonselection was due to discrimination based on reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Voluntary Service Representative, GS-7, Step 4, at the Agency's Pershing VA Medical Center facility in Poplar Bluff, Missouri. Complainant began his employment in 2003. On March 10, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was not referred for a Voluntary Service Specialist position advertised under Vacancy Announcement LL-13-MH-976813. 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). Complainant timely requested a hearing.
The AJ held a hearing on January 17, 2016, and issued a decision on September 19, 2016. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed.
The hearing revealed that Complainant's immediate supervisor was S1. Prior to this instant complaint, in August of 2013, S1 issued a proposal to suspend Complainant and a proposal to remove him due to excessive absenteeism. Complainant filed an EEO Complaint in response to S1's proposals. The EEO complaint in that matter was resolved by settlement agreement on October 15, 2013.
The announcement of the Voluntary Service Specialist position at issue was posted within 24 hours of the settlement conference. Complainant maintained that the announcement had not been previously presented to the Resource Management Board per the normal procedure for such announcements. The announcement was posted on USAJobs.gov, and was only open to Pershing Medical Center employees. The Agency contends that it followed standard positon vacancy protocols.
Complainant maintained that S1 and two other members of the selection panel knew about his prior EEO activity. Complainant avers, in substance, that the panel, with substantial input by S1, discriminated against him by influencing the panel against Complainant and denying him the position.
At the hearing, Agency witnesses denied discriminating against Complainant. They maintained that the selection panel was either unaware of Complainant's prior EEO activity or, in one instance, did not consider Complainant's prior EEO activity. The Agency argued that the selection was based on a review of the applications by a panel and the consensus judgment on the best applicants for the position. According to the panel, C-1's application received 23 points. C-2 received 19 points. C-3 also received 19 points. Complainant was the next highest at 15 points. Because of the difference between 19 points and 15 points, the cutoff was set at 19 and Complainant's application did not receive further consideration.
The record indicates that the panel consisted of P1, P2 and P3. Complainant stated that he had e-mailed information about his back pay and interest obtained from the settlement agreement to P1. P1 testified that she received the email, but did not know the content or basis of an underlying EEO issue. The AJ concluded that she was credible. She found that P1 did not associate the payment of back pay to Complainant with a pending EEO complaint because EEO processing was kept separate from her functions. She also stated that S1, who normally would participate, "did not feel comfortable doing the interview and chose to have a Subject Matter Expert on the panel instead of her." P2 and P3, who reviewed the applications and scored the applicants, were both unaware of Complainant's prior EEO activity.
The AJ found that Complainant failed to establish a prima facie case of reprisal discrimination based on his failure to show a nexus between his prior EEO activity and his non-selection for the Voluntary Service Specialist position. The AJ found that Complainant failed to prove by a preponderance of the evidence that the panel members had knowledge of his EEO activities and based his non-selection on reprisal.
CONTENTIONS ON APPEAL
Complainant contends that the AJ misapplied the law when she required that he prove far more than the Agency's awareness of his prior activity, but that he prove the Agency was aware of the content or basis of the EEO issue. He argues that there is no requirement that he must prove Agency officials had specific details of the underlying EEO issue. Complainant contends that the AJ was incorrect in placing this burden on him to establish a prima facie case.
The Agency, in pertinent part, submitted a brief supporting the AJ's findings.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015). On appeal, the burden is squarely on the party challenging the AJ's decision to demonstrate that the AJ's factual determinations are not supported by substantial evidence. Id.
ANALYSIS AND FINDINGS
For purposes of this decision, we will assume, arguendo, that Complainant successfully established a prima facie cases of reprisal discrimination. We find, however, that the record contains substantial evidence to support the AJ's determination that the Agency presented a legitimate, non-discriminatory reason for its selection decision and that Complainant did not establish pretext. The record indicates that the panel choose the best candidates for further consideration. This determination was based on the scoring of P2 and P3, neither of whom were aware of Complainant's prior EEO activity, of the applications. Complainant has simply not established that the AJ's factual determinations are not supported by substantial evidence in the record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action.
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 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. 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
_9/7/18_________________
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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