Laverne O.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 2, 20180120182032 (E.E.O.C. Nov. 2, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Laverne O.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120182032 Hearing No. 430-2017-00411X Agency No. 2004-0637-2016105023 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated April 26, 2018, finding no discrimination regarding his 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant (Clinic Profiler), GS-07, in Health Administration Services at the Charles George Veterans Affairs Medical Center in Asheville, North Carolina. On September 26, 2016, Complainant filed his complaint alleging discrimination in reprisal for prior EEO activity when: 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. 0120182032 2 (1) On June 13, 2016, he was not selected for the position of Human Resources (HR) Assistant (Recruitment and Placement (R&P)), GS-0203-07, vacancy announcement 637- 16-136-TP-1639235; (2) On September 8, 2016, he was not selected for the position of Supervisor HR Specialist (Benefit and Records (B&R)), GS-0201-11, vacancy announcement 637-16-267-TB- 1792384; and (3) On November 23, 2016, he received a “Fully Successful” rating. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a Motion for Decision Without a Hearing and Complainant filed a Response. On April 18, 2018, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. Complainant appeals from the Agency’s final order. 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, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. At the time of events giving rise to this complaint, Complainant was a GS-7, Program Support Assistant (Clinic Profiler). Regarding claim (1), the Selecting Official (SO) indicated that she convened a four-interview panel to recommend a candidate for the position of HR Assistant, GS-0203-06/07. Eight candidates, including Complainant, applied for the position. The panelists interviewed all eight candidates. Complainant applied for the GS-07 position. The panelists reviewed candidates’ resumes and interviewed them by asking a series of performance-based questions. 0120182032 3 Each panel member scored candidates’ answers and totaled the scores. The candidates received total scores ranging from 50 to 83. Complainant received a score of 64. Since the three top candidates who received the total score of 83, 82, and 80, were separated by only three points, the panelists conducted a second review of resumes of those three and recommended a Selectee, a HR Assistant, GS-6, for the position. The Selectee, who received the total score of 80 after the interview, received the highest resume score of 16 (two other candidates received the score of 12 and 11) after the second review of resumes. The SO selected the Selectee solely based on the panel’s recommendation. The SO and the panel members stated that they were not aware of Complainant’s prior EEO activity at the time of the selection. Specifically, the panel members indicated that during the interview, Complainant told them that he previously worked as a HR Assistant/Manager at the Agency (2007 – 2012), the Department of State, and had other private sector employment, but that he however needed training to update on recent HR changes. One panelist indicated that Complainant looked down and did not enunciate sometimes during the interview. Regarding claim (2), the HR Specialist indicated that four candidates, including Complainant, applied for the Supervisor HR Specialist, GS-11, position via USAJOBS. After a review of the candidates’ applications, the HR Specialist determined that Complainant was ineligible because he did not meet the specialized experience required for the position. Specifically, Complainant did not have experience with processing personnel actions into paid status, HR website, the Office of Workers’ Compensation (OWCP), the Personnel Identity Verification (PIV) program, and work life benefits. The HR Specialist also indicated that Complainant did not have experience with Thrift Savings Plans (TSP). Complainant thus was not referred for an interview. The Selectee, a Processing and Records Supervisor at the Agency, was ultimately selected for the position. Regarding claim (3), Complainant’s supervisor indicated that most of Complainant’s performance element ratings during the rating period were exceptional except on one element, customer service, wherein which he was rated as fully successful. Complainant thus received a fully successful rating for his annual rating for the period from October 1, 2015, to September 30, 2016. Specifically, the supervisor indicated that she notified Complainant throughout the rating period to simplify his presentations/communication and projects between all internal and external customers, including his email communication skills. Complainant acknowledged that during the rating period, his coworker complained to management about the email he sent to her in uppercase alleging it offended her. Complainant acknowledged this incident indicating that he sent the coworker the subject email because she took a photo of him in his cubicle without his permission. Upon review, we find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for not selecting him for the positions. Complainant failed to show that his qualifications for the positions were plainly superior to the selectees’ qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). 0120182032 4 Furthermore, Complainant failed to show that the articulated reasons for his performance rating were a pretext for discrimination. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final order 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). 0120182032 5 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 November 2, 2018 Date Copy with citationCopy as parenthetical citation