[Redacted], Antony Z., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 13, 2021

Appeal No. 2020004688 (E.E.O.C. Dec. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Antony Z.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004688 Hearing No. 520-2020-00106X Agency No. 200H-0650-2019102584 DECISION On August 25, 2020, 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 July 27, 2020 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was working as the Acting Chief of Pharmacy Service, GS-0660-14, at the Agency’s Providence VA Medical Center (PVAMC) facility in Providence, Rhode Island. On June 19, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age when on February 20, 2019, he was notified of his non-selection for the position of Chief of Pharmacy (GS-0650-15) under vacancy announcement number CBBZ-10325578- 18-DP. 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. 2020004688 2 Subsequently, the Agency accepted the foregoing claim of discrimination based on age and then conducted an investigation into the matter. The investigation showed that Complainant applied for USAJobs announcement number CBBZ-10325578-18-DP (hereinafter, “the Chief of Pharmacy position”) through the USAJobs website during the application period of October 29, 2018-November 13, 2018. Complainant was found qualified, and he, along with three other candidates, was interviewed for the position. The interview was conducted by a panel of three people. Two of the interviewers rated the Selectee higher than Complainant. One of the interviewers rated Complainant one point higher than the Selectee. The panel reached consensus on the ranking of two candidates and submitted those candidates (Complainant and the Selectee) to the Selecting Official for him to interview and make the final decision Ultimately, the interview panel unanimously recommended the Selectee for the Chief of Pharmacy position. The Selecting Official interviewed the Selectee. The Selecting Official had previously interviewed Complainant during a prior unsuccessful attempt to hire a Chief of Pharmacy. The Selecting Official then hired Selectee for the Chief of Pharmacy position, finding the Selectee to be the best candidate for the position. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s June 15, 2020 Motion for Summary Judgment and issued a decision without a hearing on July 23, 2020.2 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.3 The instant appeal followed. On appeal, Complainant contends he is entitled to hearing on his claim and that he was not provided with an adequate opportunity to present his case. He contends there are factual inconsistencies in the Agency’s presentation, the AJ failed to make any factual findings, and the AJ ignored facts that demonstrated the Selecting Official engaged in a systemic pattern of age discrimination. He avers that he is vastly more qualified than the Selectee and the Agency cannot show that the Selectee’s qualifications were plainly and demonstrably more superior to those of Complainant. Complainant states the AJ ignored the Agency’s shifting reasons for the Complainant’s non-selection. 2 On June 30, 2020, Complainant also filed a Cross Motion for Summary Judgment (Cross Motion), and on July 16, 2020, after his June 30, 2020 deadline to file a response to the Agency’s Motion, he filed a “Further Opposition.” Complainant did not request prior written approval for filing any additional motions or late oppositions, as required by the AJ’s Pre-hearing Conference Order, and therefore the Cross Motion and the “Further Opposition” were stricken by the AJ in their entirety. 3 The Agency’s final order notes the AJ issued a procedural dismissal, but in fact, the AJ issued a summary judgment decision finding there were no genuine, material issues of fact in dispute, and made a finding of no discrimination. 2020004688 3 He further states the AJ’s reliance on the Agency’s articulated legitimate, nondiscriminatory reasons is misguided. Complainant states the Agency initially discriminated against him by not selecting him for the Chief position when it was originally advertised and instead reopened the position for advertisement to bring in a wider range of candidates. He also alleges the interview panel was tainted and that they colluded with the Selecting Official. The Agency contends on appeal that although Complainant has made a prima facia case for age discrimination, there are multiple nondiscriminatory reasons the Complainant was not selected for the Chief of Pharmacy position and Complainant has failed to show the Agency’s reasons are pretextual or that his age was the reason for his non-selection. 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. 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. Here, while Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. 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 his favor. A claim of disparate treatment 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 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 2020004688 4 The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. 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). Complainant may establish a prima facie case of discrimination in the non-selection context by showing that: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she was not selected for the position; and (4) she was accorded treatment different from that given to persons otherwise similarly situated who are not members of her protected group, or in the case of age, who are considerably younger than she. Complainant v. Dep't of Justice, EEOC Appeal No. 01A04389 (May 16, 2002); Complainant v. Dep't of Educ., EEOC Request No. 05970561 (Aug. 6, 1998). While there is no bright line test for what constitutes “substantially younger,” that term has generally been applied to age differences of at least five years. Dona A. v. Dep’t of Transportation, EEOC Appeal No. 0120182248 (Nov. 26, 2019). We note that, although a complainant bears the burden of establishing a “prima facie” case, Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981), the requirements are “minimal,” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993), and complainant's burden is “not onerous.” Burdine, 450 U.S. at 253. In the instant case, the facts support finding that Complainant has met his initial minimal burden of proving his prima facie case. By virtue of his age, he is a member of a protected class. The record shows (and the Selecting Official agrees) that Complainant was qualified for the Chief of Pharmacy position. The record also shows Complainant was not selected for the Chief of Pharmacy position. Although the Selectee is also a member of the same protected class as Complainant, he is substantially younger than Complainant. Therefore, Complainant has established a prima facie case for age discrimination. However, the Agency has articulated several legitimate, non-discriminatory reasons for its actions. Four candidates for the position, including Complainant, were interviewed by a panel of three management officials. Following the interviews, the panel recommended two candidates, Complainant and the eventual Selectee, to the Selecting Official for final selection. The panel interview notes show that it scored the Selectee as 92 out of a possible 120 points and Complainant as 87 out of 120. The Health Systems Specialist who served on the interview panel stated the Selectee “was able to speak to innovative solutions for issues such as problematic employees and budget concerns.” (ROI, p. 73). She stated she scored Complainant lower because he “was unable to articulate how he would implement change in the Pharmacy, if he was chosen” and he was lacking “[i]deas on how to improve Pharmacy to make it competitive with all the changes on a national level (Mission Act).” (ROI, p. 73). She denied that age was a factor in her scoring or recommendation. (ROI, p. 74). 2020004688 5 The Nurse Manager who served on the interview panel echoed that the Selectee was able to speak to innovative solutions whereas the Complainant was unable to articulate how he would implement changes. She stated the Selectee “articulated more progressive thinking in terms of his plans for improving the pharmacy.” She stated that Complainant was ranked second among the candidates. She denied that age was a factor in her scoring or recommendation. (ROI, pp. 79- 80). The Veterans Integrated Service Network (VISN) 1 Pharmacy Executive (“Pharmacy Executive”) who served on the panel also concluded that the Selectee was able to articulate solutions for issues while Complainant did not articulate how he would implement changes if selected. (ROI, pp. 85-86). He stated, “Complainant had extensive experience. However, he did not articulate his qualifications and vision for the pharmacy as well as the selectee…The selectee articulated a better vision for improvement of the pharmacy.” (ROI, p. 86). The Selecting Official conducted final interviews with both Complainant and Selectee. He felt Complainant “lacked innovative thinking in problem-solving and creative solutions to long- standing issues.” (ROI, p. 66). The Selecting Official also testified that while “Complainant was highly qualified”, “the selectee had more experience in budget matters. Further, when I interviewed the Complainant, I asked him what he would do to change the culture in the pharmacy. His responses only described solutions I had proposed to him over the past few years. The selectee, when asked the same question, presented more thoughtful solutions than the Complainant…” (ROI, p. 67). The Selecting Official was also asked about Complainant’s performance during his tenure as the PVAMC Acting Chief of Pharmacy from 2013 to 2018 (while the Selecting Official was the PVAMC Chief of Staff). The Selecting Official acknowledged there was turmoil and staffing issues when Complainant began that position and stated that “Complainant performed well but did not succeed at implementing changes to effect the culture change needed in the pharmacy.” (ROI, p. 68). Thus, the responsible Agency officials articulated that while both Complainant and the Selectee were qualified, the Selectee overall performed better in interviews, showed more innovative vision, and he was believed to have more budget experience. Since we find the Agency has articulated legitimate, non-discriminatory reasons for not selecting Complainant, 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). We find Complainant has failed to do so. Complainant can show pretext in two ways, “either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer's proffered explanation is unworthy of credence.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 2020004688 6 Complainant argues the interview questions barely addressed the functions in the job description and did not include questions about the three distinct divisions of the Pharmacy Service at the PVAMC, but he has not explained nor provided any evidence to show how this is discriminatory. He further argues the Selectee was not the unanimous decision of the panel. However, the undisputed evidence shows that two out of three panel members rated the Selectee higher than Complainant, and the Selecting Official felt the Selectee demonstrated better answers in his interview. Additionally, Complainant admitted that he did not talk about pharmacy innovations in his interview, choosing instead to focus on what he viewed to be a realistic representation of what could be accomplished. (ROI, pp. 94-95). He argues that the Selecting Official gave him good performance reviews during his time as Acting Chief of Pharmacy, but again, Complainant did not achieve the highest possible rating, and he has not shown how this proves pretext. The Commission has found that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep't of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Complainant also argues the Agency has failed to show the Selectee’s qualifications are plainly superior to that of the Complainant. When the issue is non-selection, evidence of pretext can take the form of a showing that Complainant's qualifications were plainly superior to those of the selectee. Hung P. v. Dep't of Veteran Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015) (emphasis added). The Supreme Court has addressed the question of comparative qualifications as evidence of pretext in a non-selection case and held that the differences in qualifications must be “significant.” See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). Here, Complainant has asserted that he had superior qualifications and that the Selectee’s qualifications were lacking. However, the record shows the Selectee had a Bachelor’s degree in Pharmacy with a minor in Business Administration, he has held several pharmacy manager positions (including outpatient pharmacy management), and he had worked at the PVAMC both in the past (as the Outpatient Pharmacy Manager) and currently (as an Intermittent Pharmacist). The record further shows the Selectee performed well in interviews, which shows good interpersonal skills. While the Complainant has an advanced Pharmacy degree, is Board Certified, and worked as the Acting Pharmacy Manager, these are not required qualifications for the Chief of Pharmacy position. Additionally, the Selecting Official noted that during his time as Acting Chief of Pharmacy, “Complainant performed well, but did not succeed at implementing changes to effect the culture change needed in the pharmacy.” (ROI, p. 68). Complainant has not demonstrated that these additional factors are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [Selectee] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). While Complainant may disagree with the selection decision of the Agency, the record does not establish that his background was plainly superior to that of the Selectee. Although Complainant has alleged that the Agency acted discriminately, the record simply does not provide any evidence that the selection was motivated in any way by his age. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Texas v. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981). 2020004688 7 Thus, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged. 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 decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2020004688 8 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 December 13, 2021 Date