[Redacted], Bernard S., 1 Complainant,v.Dat P. Tran, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2020004726 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernard S.,1 Complainant, v. Dat P. Tran, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004726 Hearing No. 480-2018-00024X Agency No. 2003-0580-2017101496 DECISION On August 26, 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 28, 2020 final decision concerning his equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant time, Complainant worked as a Pharmacy Technician at the Agency’s Michael E. DeBakey, Veterans Affairs Medical Center in Houston, Texas. On May 11, 2017, Complainant filed formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), disability (limited flexion in both knees, limited motion of both ankles, post-traumatic stress disorder, paralysis of sciatic nerve 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. 2020004726 2 and tinnitus),2 and age (60) when he learned on January 31, 2017, that he was not selected for the position of Prosthetics Representative advertised under Vacancy Announcement Number JP-16- JLC-1777590-BU. The Agency accepted the complaint and conducted an investigation. The evidence gathered during the investigation reflects that the Referral Certificate for the position contained names of fifteen eligible candidates, including Complainant. An interview panel of management officials was convened to select an individual to fill the subject Prosthetics Representative position. The panel was made up of the Chief of Prosthetics Services (“RMO1”: Caucasian male, age 44), who was the selecting official, and two other management officials (“M1”: Asian American female, age 45 and “M2” Hispanic male, age 54). The panel reviewed the resumes of candidates referred candidates based on a Factor Quality Level (FQL) matrix. Based on the FQL rankings, the top three candidates received interviews. Complainant was not interviewed for the position because he was not ranked among the top three. The interview panel members stated they determined that Complainant did not possess sufficient experience and training for the position as compared to other candidates. Agency witnesses stated that the top three candidates interviewed for the position had either in-depth procurement and budgeting experience, held a master’s degree in health care administration and/or possessed a comprehensive knowledge in programs managed by the Agency’s Prosthetic Sensory Aids Services. One also had prior supervisory experience, and another had gained valuable experience working in the Agency’s Prosthetics program. RMO1 said that Complainant’s work in the pharmacy as a purchasing agent did not equip him with relevant experience or qualifications as those possessed by the candidates selected for interviews. In sum, the panel determined that Complainant lacked the job experience, supervisory experience and program knowledge possessed by the three candidates interviewed for the position. After 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. This appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of 2 We presume, for purposes of analysis and without so finding, that Complainant is an individual with a disability. 2020004726 3 record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII and ADEA case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency has satisfied its burden to articulate legitimate, non-discriminatory reasons for its non- selection. Specifically, the responsible panel members testified that Complainant’s relevant experience or skill sets for the position at issue did not equal those of the three candidates selected for interviews. Because we find that the explanations asserted by the Agency were legitimate and non-discriminatory, the burden now shifts to Complainant to prove that the Agency’s reasoning is pretextual. Of the three candidates interviewed, two were selected for the position (both African American females, younger than Complainant). Complainant has argued that he was more qualified than both the selectees because he was a disabled veteran and had over 30 years of experience at the Agency. He also claimed that his current position provided him with significant experience relevant to the Prosthetics Representative position. However, Complainant has not shown that the alleged disparities in qualifications between him and the selectees are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectees] 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). 2020004726 4 An employer has discretion to choose among equally qualified candidates, and the Commission will not second guess the Agency's assessment of the candidate's qualifications so long as the selection is not based on unlawful criteria. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981); Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). In sum, we conclude that, beyond his bare assertions, Complainant has failed to prove that discriminatory factors played any role in the selection decisions at issue. CONCLUSION The Agency properly found that Complainant failed to demonstrate that he was subject to discrimination as alleged. The Agency’s final decision is AFFIRMED for the reasons set forth herein. 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. 2020004726 5 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. 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 February 2, 2021 Date