Judson P.1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 26, 2016

0120141750 (E.E.O.C. May. 26, 2016)

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

Judson P.1
Complainant,

v.

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

Appeal No. 0120141750

Hearing No. 450-2013-00194X

Agency No. 2003-0549-2012103696

DECISION

The Commission accepts Complainant’s appeal from the Agency’s May 28, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 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 Rehabilitation
Technician at the Agency’s VA Medical Center in Bonham, Texas. Complainant applied for
an Addiction Specialist position advertised under Vacancy Announcement No. AH-11-MSJ-
655102. A three-person interview panel interviewed the candidate asking each applicant the
same performance-based questions. After the interviews, the panel ranked the candidates
based on their responses to the interview questions. The panel ranked Complainant fifth of the
eight candidates. The Selecting Official (SO) selected the interview panel’s three highest-
ranked candidates. As a result, Complainant was not selected.
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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On September 17, 2012 (and amended on September 29, 2012), Complainant filed a formal
complaint alleging that the Agency discriminated against him on the bases of race (African-
American), disability, and in reprisal for prior protected EEO when on June 26, 2012, he was
notified of his non-selection for the position of Addiction Therapist under Vacancy
Announcement No. AH-1l-MSJ-655102.

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 March 27, 2014.

In her decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, Complainant was not selected because his responses to the
interview questions were not as complete or responsive as the three selectees. For example,
one interview panelist described Complainant’s interview answers as vague; did not
demonstrate current examples of his experience; and, at times, were not related to the
question.

Complainant argued that he should have been selected because of his longer work
experience/tenure at the facility, his veteran’s disability rating, and his personal addiction
recovery experience. The AJ noted that Complainant’s length of service with the Agency did
not necessarily make him more qualified and that other applicants were also veterans and had
personal recovery experience, but neither of these factors were requirements of the position.
Further, Complainant objected to the questions used by the interview panel as unrelated to the
position. SO explained that she developed the questions based on what she sought in an
incumbent for the position and that they were designed to assess key aspects of the position.
The position description specifically highlighted the need for the Addiction Therapist to engage
in effective interactions not only with the applicant for substance abuse treatment, but also with
others within the department as well as varied individuals and groups in the community. Thus,
the questions reflected a justified focus on interpersonal skills, problem-solving, and handling
difficult situations.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination or reprisal 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 AJ’s decision was based upon lies and bogus
information. Complainant further claims that SO chose individuals on the interview panel to

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do her bidding and her actions involved favoritism. Complainant alleges that the selection
process was clouded with games, schemes, and manipulation. 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 and reprisal, Complainant failed to
present evidence to rebut the Agency's legitimate, non-discriminatory reasons for its actions.
Specifically, SO affirmed that she selected the three highest-ranked candidates based on the
recommendations of the interview panel. ROI, at 201. SO noted that each candidate was
asked the same performance-based interview questions which she developed to specifically
access each candidate based on the key knowledge, skills, and abilities required to be
successful in the position. Id. at 202-03. One panelist stated that Complainant’s interview was
not as strong as the selectees’ because his responses were vague, did not demonstrate current
examples of his experience, and, at times, were not related to the question. Id. at 211.
Another panelist concurred that Complainant did not perform as well during his interview as
the three highest-ranked candidates. Id. at 223. At the end of the interview process, the
interview panel rated the candidates and Complainant ranked fifth out of the eight candidates.
Id. at 283. Complainant ultimately was not selected as SO selected the three highest-ranked
candidates. Id.

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In attempting to show that the Agency's reasons for not selecting him are pretextual,
Complainant argued that he was more qualified than the selectees based on his tenure,
seniority, and years of 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 believes that the Agency failed to consider his own recovery, his
ability to work well with patients, and his disabled veteran status. The interview panelists
confirmed that each candidate was qualified; however, members of the panel and SO affirmed
that they believed the selectees were better equipped to meet the Agency's needs. 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 selectees. 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 or
reprisal 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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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:

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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. The requests 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 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

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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

May 26, 2016
Date