0120160233
03-13-2018
Machelle L.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Machelle L.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(National Cemetery Administration),
Agency.
Appeal No. 0120160233
Hearing No. 570-2014-00041X
Agency No. 200400402012104180
DECISION
On October 22, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 15, 2015, final order concerning her 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.
ISSUE PRESENTED
Whether Complainant was discriminated against based on her race and/or reprisal for prior EEO activity when on June 27, 2012, Complainant became aware that she was not selected for a Program Analyst, GS-0343-14 position, advertised in Announcement Number NCA 11-016-610191-VP.
BACKGROUND
In June 2005, Complainant began employment with the Agency. From October 2007 through the time of her complaint, Complainant worked as a Program Analyst, GS-0343-13, in the Business Process Improvement Unit in Washington, D.C. On November 20, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and/or reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was not selected for promotion to the Program Analyst, GS-14 position.
The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing. The AJ issued a decision by summary judgment in favor of the Agency on September 15, 2015.
In reaching her decision, the AJ determined that the record developed during the investigation established the following undisputed facts.
During the time relevant to this complaint through March 1, 2013, Complainant's first-line supervisor was "S-1" (Caucasian). In 2011, Complainant had filed an earlier EEO complaint against S-1.
On or about February 16, 2012, the Agency's National Cemetery Administration advertised a vacancy for a Program Analyst, GS-14. On March 1, 2012, Complainant applied for the position. Approximately 100 applicants were determined to meet the qualifications of the position based on the content of their written applications.
Complainant and one other candidate ("C-1") (Caucasian, prior EEO activity unknown) were tied for the highest score on the basis of their written applications and were referred for interviews. In addition to Complainant and C-1, eight other candidates were referred for interviews.
The interview panel for the position at issue consisted of S-1, R-1 (race unknown), and R-2 (Caucasian). S-1 was the final selecting official for the position.
The interview panel asked all interviewees the same thirteen performance-based questions, and each panel member assigned a score of 1-10 for each response given, for a total possible score of 130 points per candidate.
R-1 assigned a score of 109 to the Complainant's interview and a score of 118 to the C-1's interview. R-2 assigned a score of 108 to the Complainant's interview and a score of 123 to C-1's interview. S-1 assigned a score of 106 to the Complainant's interview and a score of 127 to C-1's interview. C-1 and another candidate were tied for the highest interview score. Complainant received the sixth highest interview score.
On July 1, 2012, C-1 was selected for the position at issue and promoted to the GS-14 Program Analyst position based on her higher score.
Based on the evidence of record, the AJ concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency subsequently issued a final order adopting the AJ's finding. The instant appeal followed.
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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
Complainant argues that the investigation was deficient because S-1 had retired and did not provide an affidavit during investigation, and no statement was elicited from the selectee. We have reviewed the record and have determined the investigation was adequate. The other two members of the selection panel provided affidavits and there is ample evidence of each individual panel member's scoring of the candidates interviewed. We note that the individual scoring by each panel members was very consistent from one member to another, with the selectee receiving the highest score from each panel member. Under these circumstances, we do not find the lack of an investigative affidavit from S-1 to be dipositive. Complainant had an opportunity to take depositions. However, there is no record that she conducted discovery to further develop the evidence into the process used by the Agency to make this selection. Without additional evidence, it appears that the AJ had a complete record of the salient facts.
For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly issued a decision here by summary judgment.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy. EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its action. According to the panel members and the documentary evidence, C-1 was chosen over Complainant because she received a higher interview score from each of the three panel members than the Complainant. R-1 scored Complainant's interview at 109 points and C-1 at 118 points. R-1 averred that C-1 presented first-hand experience at all levels of cemetery operations, which was unique experience, which distinguished her from all the other candidates who interviewed for the position. R-1 further stated that she was unaware of Complainant's prior EEO activity during the entire selection process. R-2 scored Complainant's interview at 108 points and C-1 at 123 points. R-2 averred that C-1 proved "thoughtful, concrete examples of past performance in response to each question." She also stated that C-1 demonstrated in answers a greater understanding of the "big picture" in the administration, focusing "on the success of the organization - on customer service, training, and continual process improvement." R-2 stated that Complainant, on the other hand, "was more inwardly directed, focused more on her own success and with a narrower view of her division's role in NCA." While S-1 did not provide an affidavit, his interview notes are part of the record. As already noted, S-1's scoring of Complainant's interview closely mirrored the other two panel members - he scored Complainant's interview at 106 points and C-1 at 127 points.
Complainant failed to proffer adequate evidence to show that the Agency's articulated reason for the selection decision was a pretext for discrimination. In a non-selection case, pretext may be demonstrated in a number of ways, including a showing that the complainant's qualifications are "observably superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Although here, Complainant provided her opinions about the selection process, she did not establish that she was "observably superior" to the selectee. Complainant does not dispute that in the initial phase of the selection process, based on their written applications, both she and C-1 received equal scores. She also does not dispute the fact that after the interviews, C-1's interview was scored higher than hers by each of the three panel members.
Complainant has also argued that there was no requirement that the highest scoring interviewee be chosen, and she asserts she was logical choice for the position. However, while this shows Complainant's disagreement with the selection, it provides no evidence that her race or prior EEO activity played a role in the selection decision. This is true even if the same officials used a different methodology in other selections.
Complainant also asserted that she believed that C-1 was preselected for the position, claiming that S-1 urged her to apply for the position. Even assuming this was true, Complainant proffered no evidence to suggest that it was not premised on the qualifications of the selectee and not on a factor unlawful under Title VII. See generally, Andrew L. Pietrzyk v. U.S. Postal Service, EEOC Request No. 05910199 (April 26, 1991); Goostree v. State of Tennessee, 796 F. 2d 854, 861 (6th Cir. 1986).
Therefore, upon review, we find that Complainant has not proven, by a preponderance of the evidence, that the legitimate, non-discriminatory reasons provided by Agency witnesses for the selection decision at issue were pretext masking discrimination or retaliatory animus.
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 order adopting the decision of the AJ, concluding no discrimination was established.
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).
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
___3/13/18_______________
Date
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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