Lashell S.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120182215 (E.E.O.C. Oct. 25, 2018)

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

Lashell S.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120182215

Hearing No. 570-2016-01133X

Agency No. 15-11-019

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the EEOC Administrative Judge (AJ)’s decision dated May 8, 2018, which
effectively became the Agency’s final decision finding no discrimination with regard to her
complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For
the following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant, an employee of the Department
of Veterans Affairs, was an applicant for employment at the Agency.

On November 5, 2015, Complainant filed her complaint alleging discrimination based on age
(over 40) and disability (30% or greater service connected disabled veteran – vertebral fracture
with degenerative arthritis of the thoracolumbar spine, tinnitus, and scars) when on July 16,

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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2015, she was not selected for the position of Management and Program Analyst, GS-0343-13,
advertised under Vacancy Announcement Number MS-15-HRC-VETS-191.2

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an AJ. On January 25, 2018, the Agency filed a Motion for Summary Judgment and
Complainant filed an Opposition to the Agency’s Motion on February 20, 2018. On February
27, 2018, the Agency filed its Reply to Complainant’s Opposition. On May 8, 2018, the AJ
issued a decision without holding a hearing, finding no discrimination. The Agency did not issue
its final order and thus the AJ’s decision effectively became the Agency’s final decision. 29
C.F.R. § 1614.109(i). Complainant appeals.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, the AJ adopted and incorporated by reference the Agency’s Statement of
Undisputed Materials Facts into her decision. The AJ, assuming arguendo that Complainant had
established a prima facie case of discrimination, determined that the Agency articulated
legitimate, nondiscriminatory reasons for its action. At the time of events giving rise to this
complaint, Complainant was a GS-12, Employment Coordinator at the Department of Veterans
Affairs Vocational Rehabilitation & Employment Division in Newark, New Jersey. She applied

2 Complainant also alleged discrimination regarding her May 29, 2015 nonselection for
employment at the Agency for the GS-13, Management and Program Analyst position under
Vacancy Announcement Number DE-15-HRC-VETS-100. On January 8, 2016, the Agency
dismissed the claim due to untimely EEO Counselor contact since Complainant did not contact
an EEO Counselor until August 3, 2015. Complainant, not disputing the dismissal, fails to
provide any justification to warrant an extension of the applicable time limit for contacting an
EEO Counselor. Thus, we find the Agency’s dismissal of the subject claim proper. 29 C.F.R.
§ 1614.107(a)(2).
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for employment at the Agency for the GS-13, Management and Program Analyst. She was not
interviewed and was not hired for the position.

The Management and Program Analyst position at issue was within the Agency’s Veterans’
Employment and Training Service (VETS) and served as a Regional Outreach Specialist
corresponding to the VETS Regional Offices. The major duties and responsibilities for the
position at issue included outreach to large employers and organizations in an attempt to generate
interest in and obtain commitment to hiring veterans, and creating apprenticeship or training
programs with the purpose of bringing more veterans into their programs. The duties also
included developing a regional strategy supporting the national outreach strategy for working
with employers.

The Selecting Official (SO) indicated that after he received the certification list of 12 eligible
candidates, including Complainant, from Human Resources, he reviewed their resumes and
applications. Based on their work experience relating to the position at issue, the SO gave each
candidate overall scores ranging from 3.5 to 0. Only the top three ranked candidates were
considered for an interview by the three panel members, including the SO. The top three ranked
candidates received the overall scores of 3.5, 3.25 (Selectee), and 3. Complainant received the
score of 2.5, putting her fifth in ranking and she was not referred for an interview.

The SO stated that Complainant was not the best candidate for the position and she lacked
national and regional level employer outreach experience. After the interview, the SO selected
the Selectee. Despite Complainant’s claim, the SO indicated that the Selectee was extremely
qualified for the position and had more experience developing national outreach engagement
than Complainant. The Selectee was the Director of Outreach and Engagement for the Nevada
Department of Veteran Services and he was also the Director of National Programs and the
Regional Director – West, within the Chairman of the Joint Chiefs of Staff at the Pentagon. One
of the interview panelists also indicated that the Selectee’s work experience was much broader,
including participating in strategic engagement with employees on behalf of all veterans.
Whereas, Complainant’s experience was mainly in dealing with job-seeking clients for whom
she advocated individually with employers.

We find that the record is adequately developed and there are no material facts in dispute. We
also find that the AJ properly found that the complaint was properly decided without a hearing
and that the AJ properly adopted the Agency’s statement of undisputed facts. Upon review, the
AJ found and we agree that there is no evidence that the Agency’s articulated reasons were
untrue or otherwise indicative of pretext. Furthermore, Complainant failed to show that her
qualifications for the position were plainly superior to the Selectee’s qualifications. See
Complainant v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based
on the foregoing, we find that Complainant failed to show that the Agency’s action was
motivated by discrimination as she alleged.

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CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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).

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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
October 25, 2018
Date