Jon M., Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 19, 2016

0120143084 (E.E.O.C. Feb. 19, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jon M.,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120143084

Hearing No. 510-2013-00295X

Agency No. 200I-0675-2013101079

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s June 20, 2014 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. The Commission’s review is de novo.
For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Neuropsychologist
at the Agency’s VA Medical Center in Orlando, Florida. On or about September 12, 2012,
Complainant applied for a Supervisory Psychologist position advertised under Vacancy
Announcement No. ORL-12-AM-730263. Complainant was one of three candidates interviewed
by a selection panel. The panelists asked the candidates performance-based interview questions
that addressed relevant work experience, clinical supervision experience, handling conflict,
training supervisor experience, managing team cohesion and employee satisfaction, medical
psychology challenges, and program development and accreditation experience. The panel rated
the candidates’ interview performance, and the Selecting Official (SO) ranked the candidates’
application packages. SO then combined the interview and applicant package scores and
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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selected the candidate with the highest aggregate score. On or about November 24, 2012, SO
informed Complainant that he was not selected.

On January 25, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (African-American) and sex (male) when on
November 27, 2012, he was not selected for the position of Supervisory Psychologist (Medical
Psychologist), GS-0180-14, Vacancy Announcement No. ORL-12-AM-730263.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on May 9, 2014.

In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, S1 identified specific reasons for his selection of the
Selectee. The Selectee had the highest aggregate score of the three candidates; the Selectee had
current experience planning, implementing, organizing, and supervising the Agency’s
psychology training programs; and the Selectee documented her national involvement in her
field as evidenced by her participation in national training conferences and publications in
professional journals. Complainant possessed comparable experience in planning,
implementing, organizing and supervising programs at the Agency on a smaller scale. In
addition, Complainant’s application did not show any references to or evidence of his potential
involvement in national-level participation in training conferences. Further, Complainant’s
application did not document that Complainant had authored a single professional journal article
or other publication.

In attempting to show that the Agency’s reasons were pretextual, Complainant argued that SO
showed discriminatory animus against him by commenting to a third party about his incomplete
application. The AJ noted that Complainant’s application in the record was in fact incomplete in
that it did not contain a resume. Next, Complainant argued that the interview panel was
“disorganized and unprepared” because they did not have his resume to review with him during
his interview. The record evidence established that Complainant did not present the resume at
the time of application; therefore, the panel had to request it of Complainant at the time of
interview in order to review it. The AJ noted that if the panel appeared disorganized, it was
likely due to Complainant’s failure to provide his resume and their belief that the document
should have been in their possession.

The AJ concluded that all three candidates were at least equally qualified, and the evidence failed
to establish any significant disparities in the professional qualifications and experience of
Complainant and selectee which would infer discriminatory animus. Thus, the evidence failed to
establish that Complainant was in any way plainly superior to the Selectee. As a result, the AJ
concluded that Complainant had not established that the Agency’s reasons for not selecting him

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were pretext for unlawful discrimination. Accordingly, the AJ found that Complainant was not
discriminated against as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency discriminated against him by not selecting
him even though he was the better candidate based on his qualifications and experience. Further,
Complainant argues that SO gave conflicting reasons as to why he was not selected and that he
was never told that his application was incomplete. Complainant believes that his qualifications
were equal to, if not more, than the selectee’s. Accordingly, Complainant requests that the
Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case.

Disparate Treatment

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). Complainant must initially 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that assuming arguendo that
he established a prima facie case of discrimination, Complainant failed to present evidence to
rebut the Agency's legitimate, non-discriminatory reasons for its actions. Specifically, SO
affirmed that he, as a member of the selection panel, reviewed the three candidates’ application
packets, ranked the applications, and participated in the performance-based interviews. ROI, at

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120. After the scores were compiled, SO stated that he recommended the selection of the
Selectee who had the highest aggregate score. Id.

SO confirmed that the selectee was the best-qualified candidate based on her superior track
record of planning, organizing, and implementing an Agency program at the facility; her
national-level activity in neuropsychology, her high-level involvement in psychology training
programs; her superior academic credentials and status as a highly-sought lecturer; and her
demonstrated outstanding supervisory and collaboration skills. ROI, at 121-22. SO noted that
Complainant had the required qualifications, but did not demonstrate the same level of
qualifications as the Selectee. Id. at 122. Another panelist added that Complainant and the
Selectee had similar qualifications; however, the Selectee was better qualified based on several
factors including her significant experience with multiple levels of trainees in psychology and
medicine and her more extensive and more recent experience in program development and
accreditation activities. Id. at 133.

In attempting to show that the Agency’s reasons for not selecting him are pretextual,
Complainant argued that he was more qualified than the Selectee based on his qualifications and
experience. The Commission notes that number of years of experience, alone, is insufficient to
establish that a candidate's qualifications are observably superior. See Kopkas v. U.S. Postal
Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011). In addition, Complainant contended that
his application materials exhibited the minimum qualifications plus those exhibited by the
Selectee, if not more. The selection panelists confirmed that each candidate was qualified;
however, members of the panel, including SO, affirmed that they believed the selectee was better
equipped to meet the Agency's needs. ROI, at 122, 133. In the absence of evidence of unlawful
discrimination, the Commission will not second guess the Agency's assessment of the candidates'
qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259.

Construing the evidence in the light most favorable to Complainant, the Commission agrees with
the AJ that the record does not establish that Complainant's qualifications are observably
superior to those of the selectee. Beyond Complainant's bare assertions and subjective beliefs,
the Commission agrees with the AJ that there is no evidence in the record that Complainant's
protected bases played a role in the Agency's selection for the position at issue or the selection
process. As a result, the Commission finds no basis to disturb the AJ's summary judgment
decision finding that Complainant was not subjected to discrimination as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency's final order, because the Equal Employment Opportunity Commission Administrative
Judge’s issuance of summary judgment was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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 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, 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.

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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

February 19, 2016
Date