0120102109
08-17-2012
Lee F. Hiller, Jr., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Lee F. Hiller, Jr.,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102109
Hearing No. 470-2010-00004X
Agency No. 200J-0537-2009-102080
DECISION
Complainant timely filed an appeal from the Agency's March 30, 2010, 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant failed to prove that he was subjected to unlawful discrimination when it failed to select him for a GS-10 Lead Medical Technologist position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-9 Medical Technologist at the Agency's Adam Benjamin, Jr. Outpatient Clinic in Crown Point, Indiana. Complainant has been employed with the Agency since 1988.
On December 17, 2008, the Agency issued a vacancy announcement for a GS-10 Lead Medical Technologist position. The announcement closed on December 28, 2008, and indicated that only applicants employed at the Agency's Crown Point facility would be considered for the position. Additionally, the announcement stated that Lead Medical Technologists develop, perform, evaluate, interpret, and validate the accuracy of laboratory procedures and results. Complainant applied for the position, and the Agency deemed him qualified for the position.
The Agency convened an interview panel that consisted of the Administrative Director (67 year-old Caucasian male), the Laboratory Manager at Crown Point Outpatient Clinic (56 year-old African-American female), and the Medical Technologist and Quality Manager (44 year-old Caucasian female). The panel reviewed the applications and developed interview questions that focused on the applicants' qualifications in the areas of leadership, management, and initiative. The panel interviewed two applicants for the position, including Complainant. After the interviews, the panel discussed each candidate's interview and reached a consensus that was recorded on a summary document prepared by the Medical Technologist and Quality Manager (Quality Manager). The summary recorded the applicants' performance in the areas of leadership, professionalism, time management, initiative, technical experience, and commitment to improve. Complainant received an overall score of "3+," and the other applicant received a score of "6+." The Agency selected the other applicant (Caucasian female under 40 years old) for the position.
On May 13, 2009, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), and age (62 years old) when, on or about February 9, 2009, the Agency failed to select him for the position of Lead Medical Technologist, GS-644-10.
The Investigation
In an investigative interview, Complainant testified that during the January 29, 2009, interview for the position, the Director said that the Agency needed "fresh blood" for the position. Report of Investigation (ROI), Tab B-1, p. 23. Complainant further testified that he was more qualified for the position because he is a retired Lieutenant Colonel with 35 years of military experience, has been employed with the Agency since June 1988, and had been at the facility for 12 years with "a ton" of supervisory experience.
Additionally, during his investigative interview, Complainant alleged that the Agency violated the Equal Pay Act by paying the selectee more than him, although he has performed more duties than the selectee performs in the Lead Medical Technologist position. Complainant testified that although he no longer performed supervisory duties, he previously supervised up to six employees at one time. He stated that the selectee received "more money to do less than what I'm supposed to be doing originally." Id., p. 37.
The Administrative Director (Director) testified that he has known Complainant for approximately 10 years, but he did not directly work with Complainant because Complainant worked at the Crown Point facility, and he worked at the Hines Medical Center in Chicago, Illinois. The Director stated that, during the interviews for the position, panelists asked questions that were related to the knowledge, skills, and abilities (KSAs) questions asked on the application for the position. The Director testified that both Complainant and the selectee were equally qualified for the position and performed the same job functions. He further testified that the selectee was chosen for the position because she exhibited enthusiasm and expressed "very positive ideas" about improvements she would make in the workplace. ROI, Tab B-2, p. 24. The Director also testified that Complainant was not selected for the position because his responses were very general, not enthusiastic, and did not specify what changes he would make in the laboratory. He stated that Complainant expressed the opinion that the laboratory was operating fine, and he did not see any need for a tremendous amount of change.
The Director further stated that he did not tell Complainant that the laboratory needed new blood, but he recalled telling Complainant after his interview that management was looking for someone who had a commitment to improve because some changes had to be made. The Director stated that Complainant was the Senior Technologist when Crown Point was an Outpatient Clinic, but his position was that of a GS-9 Medical Technologist, which is at the journeyman level. He stated that, because Complainant was a Senior Technologist at a small facility, he probably often operated as a quasi-supervisor who made assignments and responded to problems in the laboratory. The Director stated that, in 2006, all employee job titles and functions were reviewed, and Complainant received a new functional statement that clearly defined his role and title as a GS-9 Medical Technologist.
The Laboratory Manager stated that she once was Complainant's immediate supervisor, and at one time, Complainant was a Supervisory Medical Technologist, but after Medical Technologists were given a new professional standard, Complainant's functions statement classified him as a Medical Technologist without any supervisory responsibilities. ROI, Tab B-4. The Laboratory Manager testified that the selectee was better qualified for the position because the selectee was very self-motivated and looked for other tasks to work on after she finished her assigned duties. The Laboratory Manager further testified that other employees sought the selectee's opinion, looked to her as a resource, and she was more of a team-player. She stated that Complainant was not as attentive to detail and minutia as the selectee and did not give as much attention to meeting goals. The Laboratory Manager also testified that she did not recall Complainant saying anything about what he would do in the future or changes he would like to see at work. She stated that Complainant did not offer or suggest anything new.
The Quality Manager testified that she knew Complainant and the selectee because she had worked with both of them before the selection at issue in this case. She stated that she directly supervised Complainant for approximately six years at another facility. The Quality Manager stated that the selectee was chosen for the position because she was very motivated, wanted to work to make necessary changes, and showed leadership qualities. The Quality Manager further testified that Complainant was not organized or knowledgeable about quality control and did not seem to be future-oriented. The Quality Manager stated that both applicants were equally qualified with technical experience, but Complainant had poor supervisory experience.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ denied the hearing request on the grounds that Complainant failed to appear at a scheduled hearing, and did not provide good cause for failing to appear.1 The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Final Decision
In its final decision, the Agency determined that Complainant established a prima facie case of race, age, and sex discrimination. The Agency further found that it provided legitimate, non-discriminatory reasons for not selecting Complainant for the position, and Complainant failed to prove that the Agency's explanations were a pretext for unlawful discrimination. The Agency further noted that, during his investigative interview, Complainant alleged that the Agency violated the Equal Pay Act by not paying him the same as the selectee. The Agency determined that Complainant failed to prove that the Agency violated the Equal Pay Act because management demonstrated that the pay differential between Complainant and the selectee was based on a bona fide job classification system, which is a factor other than sex. 2
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency used subjective criteria to mask its discriminatory animus against him. He contends that the Director told him that he was not selected because the Director wanted "fresh blood" in the position. Complainant maintains that the Agency's ageist bias is reflected in its assertion that initiative and commitment to improvement were traits it sought for the position. Complainant further contends that he possessed superior qualifications for the position because he was designated as the Supervisory Medical Technologist from 1988 until 2005 and performed all supervisory duties at Crown Point until the Quality Manager came to the facility. The Agency does not raise any arguments on appeal.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 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").
ANALYSIS AND FINDINGS
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). For instance, to establish a prima facie case of disparate treatment on the bases of race or sex, Complainant must show that (1) he is a member of a protected class; (2) he was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) he was treated differently than similarly situated employees outside his protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (Apr. 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (Jan. 9, 1998); Trejo v. Social Secur. Admin., EEOC Appeal No. 0120093260 (Oct. 22, 2009).
Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks. 509 U.S. 502, 519 (1993).
In this case, during the relevant time period, Complainant was a 62 year-old African-American male who applied and was deemed qualified for a Lead Medical Technologist position. The Agency selected a Caucasian female who was under 40 years old for the position. Consequently, we find that Complainant established a prima facie case of race, sex, and age discrimination.
Nonetheless, we find that the Agency provided legitimate, non-discriminatory reasons for not selecting Complainant. Specifically, the Agency stated that Complainant was not selected for the position because his interview responses were very general, not enthusiastic, and did not specify what changes he would make in the laboratory. The Agency also stated that Complainant was not as attentive as the selectee to detail, did not offer or suggest anything new, was not organized or knowledgeable about quality control, and did not seem to be future-oriented. The Agency further stated that the selectee was chosen for the position because she exhibited enthusiasm and expressed very positive ideas about improvements she would make in the workplace, was very self-motivated and sought additional work when she completed assignments, wanted to work to make necessary changes, and showed leadership qualities.
Complainant contends that the Director told him that he was not selected because the Director wanted "fresh blood" in the position. The Director denied making this comment but recalled telling Complainant that he was looking for someone who had a commitment to improve the facility because changes had to be made. At any rate, we do not find that the term "fresh blood" necessarily reflects an ageist bias. Further, we find it reasonable for the Agency to emphasize initiative and a commitment to improvement as desirable traits in its Lead Medical Technologist.
Complainant also contends that he possessed superior qualifications for the position because he was designated as the Supervisory Medical Technologist from 1988 until 2005 and performed all supervisory duties at Crown Point until the Quality Manager came to the facility. However, we do not find that Complainant's qualifications were plainly superior to the selectee's qualifications. In so finding, we note that the selectee had been a GS-9 medical Technologist since 2002, had a degree in Medical Technology, and was a faculty member at the Myron E. Rubnitz School of Medical Technology.
The Commission notes that and individual is not necessarily more qualified for a position by virtue of possessing greater years of experience. Morgan v. Dep't of the Treasury, EEOC Appeal No. 0120073389 (Sept. 14, 2010) (citing Ropelewski v. U.S. Postal Serv., EEOC Request No. 05940313 (Nov. 23, 1994)). Moreover, an employer, absent discriminatory animus, has the option to choose from among applicants who have different, but equally desirable, qualifications. See Canhan v. Oberlin College, 56 F. 2d 1057, 1061 (6th Cir. 1981). Here, the Agency was filling a supervisory position, and as such, has even greater discretion. See Hickman v. Dep't of Justice, EEOC Appeal No. 01A11797 (Dec. 20, 200l) (citing Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987)). Consequently, we find that the Agency properly found that Complainant failed to prove that he was subjected to unlawful discrimination because he did not show that the Agency's non-discriminatory explanations were pretext for unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision for the reasons set forth in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (Nov. 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 (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 (Z0610)
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
August 17, 2012
Date
1 On appeal, Complainant does not contest the AJ's remand of his case.
2 We decline to review Complainant's allegation that the Agency violated the Equal Pay Act because he did not raise this matter on appeal. We note that the Commission exercises its discretion to review only the issues specifically raised in a complainant's appeal. Equal Employment Opportunity Commission Management Directive for 29 C.F.R. � 1614 (EEO MD-110), at 9-10 (Nov. 9, 1999).
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0120102109
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102109