Manuel K.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 6, 20180120172559 (E.E.O.C. Nov. 6, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Manuel K.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172559 Agency No. 200H05232016101115 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 20, 2017 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Voluntary Service Specialist, GS 12 at the Agency’s Veterans Affairs Medical Center ("VAMC") - Brockton in Brockton, Massachusetts. On March 14, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on age (year of birth 1958) when: 1. on November 13, 2015, management rated Complainant’s performance Excellent rather than Outstanding; 2. on December 2, 2015, management did not promote Complainant to Chief, GS 13, Voluntary Service, under Announcement RS-15-AHe-1478679; and 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. 0120172559 2 3. from February 22, 2015, to January 9, 2016, management denied Complainant a salary increase for performing higher-graded duties as Acting Chief. After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant requested that the Agency issue a final decision. On June 20, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant submits several rebuttal statements supporting his argument that he was discriminated against because of his age. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Acting Deputy Director, the responsible management official for Complainant’s performance rating, (“M1”) (1959) stated, regarding claim 1 that she rated Complainant Excellent based on Complainant’s “self-assessment and [her] personal knowledge of [Complainant’s] achievements against [Complainant’s] performance plan” to determine and appropriate rating. 0120172559 3 M1 also stated that she had no knowledge of Complainant’s age and used Complainant’s “self- assessment, regular meetings and communication” to determine Complainant’s Excellent rating. M1 further explained that because Complainant was rated Exceptional for four critical elements and rated Fully Successful for two non-critical elements, Complainant received an Excellent rating in accordance with the performance rating criteria. The record contains a copy of Complainant’s performance evaluation for the period October 1, 2014, through September 30, 2015 while he was Acting Chief of the Voluntary Service. The evaluation indicates that Complainant was rated Fully Successful in two non-critical elements and was rated Exceptional in four critical elements. The evaluation further indicates that an “Outstanding” rating requires an Exceptional level of achievement for all elements. An Excellent rating only requires an Exceptional level of achievement for all critical elements and at least a Fully Successful level of achievement for the non-critical elements. Regarding claim 2, the Acting Director (“M2”) (1960) was the selection official for vacancy announcement number RS-15-AHe-1478679. M2 stated that all candidates were ranked on their applications, the highest-ranking candidates were interviewed, and the top three candidates were selected for a second interview. M2 explained that Complainant’s average ranking score was 31.75. The selectee had an average ranking score of 34.5. M2 stated that Complainant had one year of experience in the Voluntary Service as Assistant Chief and Acting Chief, while the selectee had two years of experience as Chief of Voluntary Service and the selectee also had experience as an acting Assistant Director for a VA medical center. M2 further stated that she did not select Complainant for the position because the selectee “interviewed better and was ranked higher” than Complainant. The record includes a copy of the interview score sheet indicating that Complainant received an average rating of 31.75 and the selectee received an average rating of 34.5. The record also includes a notification of personnel action indicating that the selectee was hired for the position effective January 10, 2016. Regarding claim 3, M1 stated that Complainant was “temporarily promoted from GS 12 to GS 13 during the period of 11/2/14 to 2/21/15.” M1 further stated that Complainant’s temporary promotion was “limited to 120 days by [l]aw.” M1 explained that Complainant received a Special Contribution Award of $1,500 in recognition for the period he served as Acting Chief, voluntary service. The record includes a statement of understanding regarding the terms and conditions of Complainant’s temporary promotion signed by Complainant on November 4, 2014. The agreement stated, in pertinent part, that (1) Complainant voluntarily accepted the “temporary position” effective November 2, 2014; and (2) Complainant understood that “the total length of time in this temporary promotion is not to exceed 120 days (2/21/2015).” 0120172559 4 The record also includes copies of Complainant’s notifications of personnel actions indicating that Complainant’s temporary promotion to a supervisory voluntary services officer (GS 13) was effective November 2, 2014 and ended February 22, 2015. On February 22, 2015, Complainant resumed his position of voluntary services officer (GS 12) because his temporary promotion had expired. The record further includes relevant sections of Agency regulations, 5 C.F.R. § 335.103(c)(3)(iii), and relevant sections of the Agency’s memorandum regarding merit promotions which indicate that non-competitive promotions for temporary promotions or details to a higher-grade position have a term of 120 days or less. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on his age. We AFFIRM the Agency’s final decision finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 0120172559 5 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 November 6, 2018 Date Copy with citationCopy as parenthetical citation