0120091881
09-09-2010
Michael E. Crowdus, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Michael E. Crowdus,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091881
Agency No. 200J-0326-2008102119
DECISION
On March 23, 2009, Complainant filed an appeal from the Agency's February 18, 2009, final action 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final action.
BACKGROUND
On March 31, 2008, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him on the bases of his race (Black), disability (schizophrenia, depression and anxiety), and age (year of birth: 1949) when on February 12, 2008, he was informed that he was not selected for the position of Program Support Clerk, GS-303-4, MPA #326-08-04.
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). In accordance with Complainant's request, the Agency issued a final action pursuant to 29 C.F.R. � 1614.110(b).
The Agency determined that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Final Action. Complainant was found to be qualified and was referred as an external applicant for consideration for the Program Support Clerk position. Id. at 9. Each of the three selectees were external candidates and also were all service-connected disabled veterans. Id. at 2. The individuals that were chosen had the highest three scores and Complainant had the fourth highest score. Id. at 11. The Agency stated that the individuals with the highest two scores performed the best on the interviews by far. Id. One of these candidates was cited for his strong computer skills and educational background. Id. The consensus among the interviewers was that the third ranked selectee was chosen rather than Complainant because she performed a little better on the interview. Id. Specifically, this selectee looked the interviewers in the eye when answering questions, elaborated on the questions, and demonstrated more confidence than Complainant during the interview. Id. It was also noted that this selectee had worked in a similar position. Id. In terms of race, the selectees consisted of two Whites and one Hawaiian/Pacific Islander. Id. at 8. With regard to age, the selectees were born in 1952, 1983 and 1957, respectively. Id. at 9.
The Agency determined that Complainant established a prima facie case of race and age discrimination. Id. at 8. The Agency further determined that Complainant failed to establish a prima facie case of disability discrimination. Id. at 10. The Agency stated that although Complainant has been diagnosed with schizophrenia, and that the condition is of long duration, the record does not establish that Complainant is an individual with a disability that substantially limits a major life activity. Id. The Agency noted that Complainant stated that although he has occasional symptoms that he treats with medication and recreation, he is fully functional and not impaired in any major life activities. Id.
The Agency stated that each candidate was asked five questions during the interview and received a score based on the responses. Id. at 11. According to one interviewer, Complainant was not as thorough in his responses, and when answering the final question merely responded yes sir without elaborating. Id. The Agency determined that it articulated legitimate, nondiscriminatory reasons for not selecting Complainant. Id. at 12. With regard to Complainant's attempt to establish pretext, the Agency determined that Complainant failed to offer evidence showing that its reasons were unworthy of belief. Id. Thereafter, Complainant filed the instant appeal.
In response, the Agency asserts that the selection for the position at issue was based on the interviewing process. The Agency states that each candidate was asked the same performance-based questions and that Complainant ranked fourth. The Agency asserts that Complainant failed to establish that his qualifications were superior of those of the selectees.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies that its decisions were motivated by Complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, Complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp. Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the Agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy his burden of proof, Complainant must then demonstrate by a preponderance of the evidence that the Agency's proffered reason is a pretext for disability discrimination. Id.
We find that Complainant has set forth a prima facie case of race and age discrimination. With respect to Complainant's claim of disability discrimination, we shall assume, arguendo, without making a finding that Complainant is an individual with a disability. We shall further assume that Complainant has set forth a prima facie case of disability discrimination. The Agency stated that the three individuals it chose for the positions were rated higher than Complainant. According to the agency, the two highest ranked selectees performed the best on the interviews by far. As for the third ranked selectee, the Agency stated that this individual had worked in a similar position and that her interview was better than Complainant. The Agency noted that Complainant had a decent interview but that she failed to make eye contact with one of the interviewers when she was asked a question. We find that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant.
Complainant claims that his qualifications warranted his selection. In a nonselection case, pretext may be shown by a showing that complainant's qualifications are observably superior to those of the selectee. Bauer v. Bailar, 647 2d 1037, 1048 (10th Cir. 1981). Upon review of the record, we find that Complainant has not presented persuasive evidence to establish that his qualifications were observably superior to any of the selectees. Therefore, we find that Complainant has failed to establish that the agency's legitimate, nondiscriminatory reasons for not selecting him were pretext intended to mask discriminatory intent.
CONCLUSION
The Agency's determination in its final action that no discrimination occurred is AFFIRMED.
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 (November 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
September 9, 2010
__________________
Date
2
0120091881
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091881