0120073417
10-30-2009
Jonathan M. Harris, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jonathan M. Harris,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073417
Agency No. 2003-0657-2006-103866
DECISION
On July 5, 2007, complainant filed an appeal from the agency's June 28,
2007 final decision 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the agency properly found that complainant was not subjected
to discrimination on the bases of age and race when it failed to select
him for the position of Program Support Assistant.
BACKGROUND
The record reveals that complainant applied for a Program Support
Assistant, GS-303-5, position in or about July 2006. The position
primarily involves working directly with the Medical Care Collection
Fund Program; performing a variety of clerical and administrative tasks,
including interviewing and processing veteran applications for outpatient
medical benefits or admission to a medical center; and, advising veterans
of entitlements to various benefits.
Complainant was among seven applicants who were deemed qualified for the
position and interviewed by a panel of three supervisors. Applicants were
asked 12 questions and rated individually by each panelist on a scale
of one to five. After individually rating the applicants, the panelists
discussed their ratings collectively and tallied the scores in order to
yield a total score for each applicant. Each applicant could receive a
maximum of 180 total points. The panelists gave applicants total scores
ranging from 149 points to 90 points, and complainant ranked fourth with
a total score of 133 points. Members of the interview panel initially
recommended the second highest scoring applicant, who had a score of 146,
to the Selecting Official, because they could not get adequate references
on the highest scoring applicant who had a score of 149. When the second
highest scoring applicant declined the position, they recommended the
third highest scoring applicant, a 43-year old white female who had a
score of 145. The 43-year old white applicant accepted the position.
On November 2, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (African-American),
age (born in 1933), and sex (male) when on or about September 20, 2006,
complainant became aware that he was not selected for the position of
Program Support Assistant, GS-303-5.1
In an investigative affidavit, the Patient Account Manager (42-year
old white) stated that she served as the chairperson of the interview
panel and did not know complainant until she met him at his interview.
She stated that the selectee was chosen for the position because the
interview panel ranked the selectee higher than complainant; she had
previously worked with the selectee; the selectee's supervisor recommended
her as an "excellent choice;" the selectee was already an agency employee;
and, the selectee already knew the agency's "system."
The Lead Medical Records Technician (41-year old African-American) stated
that she was on the panel that interviewed complainant. She stated
that she rated the selectee highest because she previously worked with
the selectee and ranked complainant lower based upon his interview
performance.
The Lead Program Support Assistant (44-year old white male) stated that he
was on the selection panel for the position. He stated that he gave the
selectee a high score because he thought she had significant experience
in computer software and telephone communications, whereas complainant
had less experience.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC 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). In its decision, the agency concluded that complainant
established prima facie cases of age and race discrimination but failed to
prove that the agency's explanations for not selecting him were pretext
for unlawful discrimination.
CONTENTIONS ON APPEAL
In brief appeal statements, complainant contends that, contrary to
the final agency decision, he was never interviewed for the position,
although he was informed by the agency that he was qualified. The agency
requests that we affirm its final decision.
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
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 pretextual. 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).
In this case, the record reveals that complainant, a 72-year old African
American, applied for and was qualified for the Program Support Assistant
position. After applicants were interviewed for the position, the agency
selected a 43-year old white female for the position, and complainant
was not selected for the position. Thus, we find that complainant
established a prima facie case of age and race discrimination.
Nonetheless, we also find that the agency provided legitimate,
non-discriminatory reasons for its selection. Specifically, interview
panelists stated that the selectee was chosen for the position because the
interview panel ranked her higher than complainant; she had previously
worked with a panelist; her supervisor recommended her as an "excellent
choice;" she was already an agency employee; and, she already knew the
agency's "system." The agency further maintained that complainant had
less relevant experience than the selectee.
Complainant maintains that the agency did not interview him for
the position. However, each interview panelist attested that
complainant was interviewed by the panel. Moreover, the record
contains copies of detailed interview notes from each panelist that
reflect complainant's responses during the interview and the panelists'
scoring of complainant's interview responses. Exhibit C-7, pp. 31-37.
Moreover, we note that in an investigative affidavit, one panelist
recalled that complainant sent interview panelists gift certificates
"as a thank you for interviewing him," which complainant has not denied.
Affidavit B-3, p. 8. Documentary evidence and corroborating testimony
confirm that complainant was interviewed for the position. We determine
that complainant failed to prove that the agency's non-discriminatory
explanations were pretext for unlawful discrimination. Thus, we find
that the agency properly found no discrimination.
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 decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
____10/30/09______________
Date
1 We note that complainant further alleged that he was subjected to
discrimination when the agency failed to select him for three other
positions in 2006. However, the agency dismissed these claims on
the basis that they were initiated by untimely EEO counselor contact
in a letter dated November 30, 2006. We note that the Commission has
discretion to review only those issues specifically raised in an appeal.
EEOC Management Directive 110, 9-10 (November 9, 1999). In this case,
we decline to review the November 30, 2006 dismissals because complainant
does not contest the dismissals on appeal.
??
??
??
??
2
0120073417
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120073417