0120092578
09-08-2009
Michael O. Lucas, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Michael O. Lucas,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092578
Agency No. 200P-0654-2007102774
Hearing No. 550-2008-00092X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's April 29, 2009 final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On July 2, 2007, complainant filed the instant formal complaint. Therein, complainant, an applicant, claimed that the agency discriminated against him on the bases of age (over 40) and in reprisal for prior EEO activity.1 Specifically, complainant raised the following claim:
in 2007, he was not selected to be a Police Officer announced pursuant to Merit Promotion Announcement Nos. 07-40 and 07-105.
Following the investigation, complainant requested a hearing before an EEOC Administrative Judge (AJ). On April 15, 2009, the AJ issued a decision by summary judgment in favor of the agency. On April 29, 2009, the agency fully implemented the AJ's decision in its final order.
The AJ found that complainant established a prima facie case of age and reprisal discrimination because the selectees were outside of his protected classes. The AJ further found that the agency nevertheless articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Merit Promotion Announcement 07-40
The selecting official (SO) stated that she set up a panel of four agency officials, including herself. SO stated that the panel reviewed the candidates' application packages and conducted interviews. SO stated that following the interviews, the panel recommended the selectee for the subject Police Officer position because he was the best suited. Specifically, SO stated that the selectee was "very articulate during the interview. Gave thorough answers to the questions, with very specific experiences highlighted for the performance based questions." SO also stated that the selectee completed a thorough application, answered all of the Knowledge, Skills, Abilities and Other Characteristics (KASO) questions "without referring the reader back to the application to find the answer." SO stated that during the relevant time, the selectee was working for "small town police department, had experience with gangs, drugs, and street crime. What a transient population experience like that is valuable."
SO stated that she did not select complainant for the subject position because he did not complete his application correctly in regard to the KASO; and that his answers to the KASO were "vague & referred the reader back to the application for answers." SO stated that during his interview, complainant "did not give clear, concise answer to the performance based questions nor did he give examples of how he gained his experience or conducted or word conduct himself if placed in a particular situation." Specifically, SO stated that complainant's answers to the performance based questions were "general and non-specific." Furthermore, SO stated that complainant "did not score high enough to be referred for consideration."
One of the panelists (P1) stated that the panel sought a candidate "with good speaking and writing skills. A candidate with previous experience that would enable them to work in a medical center setting with veterans, staff and visits to the VA Medical Center." P1 stated that the criteria was a rating scale "for how well the candidate answered each question. The candidate with the highest score was recommended." P1 stated that the panel recommended the selectee for the subject position because he "was more articulate when describing his experience. He offered many examples of his experience that related to the job of a VA Police Officer."
P1 stated that the selectee had better speaking and writing skills than complainant. P1 also stated that the selectee "had relevant experience and was able to communicate his experience that earned him a higher score than the complainant." P1 stated that complainant's answers to the interview questions showed that "he did not possess the speaking and writing skills comparable to the selectee."
Merit Promotion Announcement No. 07-105
The record reflects that the second Police Officer position announcement was issued after it was determined that the selectee selected under Merit Promotion Announcement No. 07-40 was unable to serve because of deficiencies which emerged in the course employment screening tests. The record further reflects that once again, SO was the selecting official and a panel of four agency officials, including SO, was implemented to consider the candidates' application packages and make a recommendation to SO for consideration. SO stated that the panel recommended a named candidate for the subject position "however, during the initial pre-criminal history background check, [a named candidate] was disqualified because of information found. The selection then was to go to the second candidate who was on a DEU announcement."
SO stated that she chose the selectee for the subject position because he was best qualified. Specifically, SO stated that the selectee had extensive experience as a street patrol officer with a tribal police department and with a department handling substance abuse issues. SO stated that the selectee "was very articulate during the interview. He gave specific thorough answers and examples to the scenario and performance based questions." SO also stated that the selectee "correlated examples of previous cases and experiences, which is what the panel was looking for in answers."
SO stated that she did not select complainant for the subject position because complainant "did not answer completely on a separate sheet of paper each KASO giving clear, concise detailed answers as to his experience and examples of how he gained his knowledge and experience, by detailing incidents or providing experience through educational experience." SO stated that during his telephonic interview, complainant "did not give clear, concise answers. He generalized his answers, when the question clearly asked for 'give us an example of how you...' or 'provide us a time when...' The complainant also gave incomplete or inaccurate answers to general police knowledge questions as well." SO stated that as a result, complainant's final score was not high enough to qualify him being referred to her for consideration.
One of the panelists (P2) stated that the panel recommended a named candidate for consideration, however, during the initial background check "there was some information discovered that disqualified him from the process so we proceeded to the next person on our applicant list." P2 stated that he recommended the selectee for the subject position "solely on his score that he received during his oral interview." Specifically, P2 stated that the selectee "was able to articulate thoroughly and completely his answers to the questions posted to him. The selectee was able to cite specific cases that he had handled and use them as example to answer the questions or use them as experience in scenario based answers."
P2 stated that the panel did not recommend complainant for consideration because he did not score high enough during the telephonic interview. P2 stated that while each candidate was asked the same interview questions and scenarios, complainant "was simply unable to give enough specifics in his answers to score well." P2 stated that complainant submitted an incomplete KASO and "failed to give any detail relating to his experience in Law Enforcement either during his telephonic interview or in his resume."
On appeal, complainant argues that the AJ erred in issuing summary judgment. Complainant argues that he established that he was subjected to discrimination because he was more qualified than the selectees.
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing, or regarding the AJ's findings on the merits. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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 8, 2009
__________________
Date
1 The record reflects that complainant raised reprisal as a basis during the January 3, 2008 pre-hearing conference based on prior EEO activity dating back to the 1990s. This reprisal claim was not included in the instant complaint. The administrative judge assigned to the complaint nevertheless address reprisal as a basis in his decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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