Merle J.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 11, 2016

0120143212 (E.E.O.C. Feb. 11, 2016)

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

Merle J.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120143212

Hearing No. 471-2014-00025X

Agency No. 200J-0506-2013102250

DECISION

Complainant filed an appeal from the Agency’s August 27, 2014 final order concerning his
equal employment opportunity (EEO) 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. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND

Complainant worked as a GS-6 Supply Technician at the Agency’s Medical Center in Ann
Arbor, Michigan. He applied for promotion to GS-7 in November 2012, but became aware on
March 7, 2013, that he had not been selected. On May 10, 2013, he filed an EEO complaint
in which he alleged that his first, second, and third-line supervisors (S1, S2, and S3)
discriminated against him on the basis of disability (permanent residual effects of back injury)
by not promoting him to a GS-7 Supply Technician vacancy that had just opened. Investigative
Report (IR) 38, 116. In particular, he identified S3 as the Selecting Official. IR 101.

1This 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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Complainant applied for the vacancy in November 2010, and was placed on the certificate of
eligibles prepared for internal candidates. He was given a Veterans’ preference of 30%. IR
103, 120-23, 135, 137, 210. S1 and S2 reviewed the internal certificate and declined to
recommend any candidates from that list. Shortly afterward, they received a certificate of
eligibles from outside the Medical Center, upon which the Selectee’s name appeared. S1 and
S2 recommended the Selectee to S3, who made the decision to hire him. No interviews were
conducted. IR 119, 132-34, 148-50.

Complainant identified his disability as a combination of thoracic sprain, cervical bulge,
degenerative arthritis of the spine and other ailments. IR 98-99. The essential functions of the
GS-7 Supply Technician position included walking, lifting up to 50 pounds, and pushing carts
weighing up to 600 pounds. IR 100, 154-55. Complainant averred that he was able to
perform these essential functions at the time he applied for the promotion. IR 100. S3
testified in his affidavit that he did not become aware of Complainant’s medical restrictions
until March or April of 2013, by which time the selection had already been made. S3 also
confirmed that Complainant was able to perform the essential functions of the position at the
time of the selection. IR 117-18.

Complainant insisted that he was more qualified than the selectee by virtue of the fact that the
Selectee had only been with the Department for a few months and did not have the requisite
experience. IR 108. S1, S2 and S3 all testified, however, that although Complainant and the
Selectee met the basic qualifications for a GS-7 Supply Technician, the Selectee was a new
employee who caught on quickly to the inventory management system, that he worked well
with others, that he exhibited compassion when working with patients, that he had the
operating room experience that they were looking for, and that he had participated in a process
improvement project on a cross-disciplinary team. IR 121-22, 132, 136-37, 149-50. They
further testified that Complainant was unable to interpret policies as written and had behavioral
issues in that he lost his temper in the presence of coworkers and patients. IR 121-22, 135-36,
147, 149-50, 52, 206. Complainant himself acknowledged that he had a fractious relationship
with S3 when she was his direct supervisor. IR 102.

Complainant also averred that the Selectee was hired from the outside under a special hiring
authority entitled, “Veterans Recruitment Appointment” (VRA), and that the Agency failed to
follow proper regulatory procedures in not including him, Complainant, as a VRA-eligible
applicant. IR 105, 109. S1 and S2 both responded that the Selectee was not a VRA applicant.
IR 135, 151.

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Although Complainant timely requested a hearing, the AJ assigned to the case granted the
Agency’s motion for summary judgment over his objections and issued a decision on August 1,
2014, without holding a hearing. The Agency subsequently issued a final order adopting the
AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination
as alleged.
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ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s personnel decisions involving promotions
unless there is evidence of a discriminatory motivation on the part of the officials responsible
for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450
U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on his disparate treatment
claim, Complainant would have to present enough evidence to raise a genuine issue of material
fact as to whether S1, S2, or S3 were motivated by unlawful considerations of his disability in
their decision to hire the Selectee from the outside rather than promote him. See 29 C.F.R.
§ 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can do so by presenting documents
or sworn testimony showing that the reasons articulated by S1, S2 or S3 for not promoting him
are pretextual, i.e., not the real reason but rather a cover for disability discrimination. St.
Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253.
When the issue is nonselection, evidence of pretext can take the form of a showing that
Complainant’s qualifications for the position were plainly superior to those of the selectee.
Hung P. v. Department of Veterans Affairs, EEOC Appeal No. 0120141721 (December 3,
2015). It can also include discriminatory statements or past personal treatment attributable to
S1, S2, or S3, comparative or statistical data revealing differences in treatment across
disability-related lines, unequal application of Agency policy, deviations from standard
procedures without explanation or justification, or inadequately explained inconsistencies in the
evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No.
0120141697 (November 12, 2015).

When asked by the investigator why he believed that his disability was a motivating factor in
his nonpromotion, Complainant reiterated that he was significantly more qualified for the
position than the Selectee and that he would have been selected were it not for his disability.
IR 108. Complainant’s assertion reflects his belief that the nonselection, in and of itself, is
sufficient to establish motive. This is simply not true. Employers have discretion to choose
among equally qualified candidates as long as the selection is not based on unlawful criteria.
Complainant v. Department of Homeland Security, EEOC Appeal No. 0120141478 (July 31,
2015). Moreover, even if the candidates were not equally qualified, the laws the Commission
enforce cannot prevent employers from selecting less qualified applicants unless those selection
decisions are rooted in a statutorily proscribed motivation.

On this crucial issue, Complainant did not provide evidence of any of the indicators of pretext
listed above. Other than his own affidavit, he has not submitted any sworn statements or
documents that show his qualifications for the GS-7 Supply Technician position to be superior
to those of the selectee, that contradict the explanation provided collectively by S1, S2, or S3,
or that call their veracity of these officials into question regarding their assessments of the
Selectee’s previous experience and Complainant’s performance and behavioral issues. We note
in particular Complainant’s admission that he was able to perform the essential functions of the
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job at the time he submitted his application and S3’s acknowledgement that she did not become
aware that Complainant was under medical restrictions until March or April of 2013, after the
selection had already been made. We also note Complainant’s failure to contradict the
affidavit testimony of S1 and S2 that the Selectee was not hired under the VRA hiring
authority. These findings alone undermine Complainant’s efforts to establish a genuine issue
of material fact as to whether his nonselection was based on his disability. We therefore find,
as did the AJ, that no such genuine issue of material fact exists.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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).

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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

February 11, 2016
Date