[Redacted], Christina V., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionDec 22, 2021Appeal No. 2020003986 (E.E.O.C. Dec. 22, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christina V.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003986 Hearing No. 570-2019-00440X Agency No. 07005-201A-2018103711 DECISION On June 8, 2020, Complainant filed an appeal from the April 30, 2020 decision of an Equal Employment Opportunity Commission Administrative Judge (AJ) concerning Complainant’s 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. BACKGROUND At the time of the events at issue, Complainant was an applicant for employment with the Agency. On May 17, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on race (African American), disability and age (48) when, on March 16, 2018, she was notified that she was not selected for the Equal Employment Opportunity Specialist position advertised under Vacancy Announcement No. 705-18-DML-10124568. 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. 2020003986 2 The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. Complainant applied for the Equal Employment Opportunity (EEO) Specialist, GS-7/9/11 position at the Agency’s St. Petersburg Field Office in St. Petersburg, Florida. Human Resources reviewed her application, determined that she was qualified for the position, and placed her name on a list of qualified candidates. Team Lead Counselor (RMO1) (Black-Hispanic, 41) and Team Lead Investigator (RMO2) (mixed race, 60) testified that they were on the interview panel for Complainant’s first interview, which was held by telephone. Following the interview, RMO1 and RMO2 did not recommend Complainant for a second interview. RMO1 explained that she did not recommend Complainant for a second interview because Complainant was late for her first interview and failed to adequately answer the performance-based questions that were asked during the interview. RMO1 provided a copy of the performance-based questions that were asked during the interview and the candidates’ scores. The document shows that RMO1 gave Complainant a score of 7 out of 25 points. RMO2 stated that when she reviewed Complainant’s resume, on the surface Complainant appeared to have relevant experience. However, she noted Complainant lacked attention to detail, misspelled her agency name, and the work on her resume was out of order which gave the appearance that she had not worked since 2016. In addition, RMO2 stated that she did not believe that Complainant would be “fit for our office” because Complainant “arrogantly” referred to other employees as “lower level” which “reflects as derogatory.” Two of the candidates that RMO1 and RMO2 recommended for a second interview were of the same race as Complainant and protected age group. The District Manager (RMO3) (African American, 48) testified that although the interview panel for Complainant’s first interview did not recommend her, he was interested in the skills and experience that she listed on her resume, so he added her to the list of candidates for second interviews. RMO3 was not the deciding official, but he conducted Complainant’s second interview with the deciding official, the Deputy District Manager (RMO4) (Native American, 51). RMO3 and RMO4 testified that they were aware of Complainant’s race but did not know her age or if she had a medical condition or impairment. They indicated that Complainant’s race, age, and disability were not factors that they considered in the hiring process. RMO3 explained that the Agency’s “goal was to hire a person who can connect with complainants with a goal of ultimately resolving and expeditiously timely processing EEO complaints.” RMO3 stated that the Agency “needed more individuals on staff who can talk and have dialogue with people.” RMO4 ultimately made the decision not to hire Complainant because Complainant “seemed very unengaged” when they were looking for a counselor to connect with complainants. In addition, RMO4 noted that Complainant was late for her second interview. RMO4 expressed that “in this business to be on time after setting appointments to speak with an aggrieved person . . . is critical and sets the tone for the rest of the process.” RMO4 provided a copy of the performance- based questions that were asked during the interview and the candidates’ scores. The document shows that RMO4 gave Complainant a score of 13 out of 20 and the selectee (Caucasian, over 40) a score of 15 out of 20. 2020003986 3 Complainant testified that she was not late for her first interview, which was scheduled for February 22, 2018 at 3:00 pm. Complainant submitted a copy of her telephone bill, which supports that she dialed the Agency’s conference call number at 3:00 pm. Complainant admitted that she was late for the second interview, which was conducted in-person. However, she attributed her lateness to her disability and argued that the Agency failed to make an accommodation for her irritable bowel syndrome by not providing her with access to a bathroom during her second interview. Complainant argued that the second interview was a farce because her interviewers wanted to “check her out” and make a physical assessment of her irritable bowel syndrome and carpal tunnel syndrome, to see if they would adversely affect her ability to do her job. Complainant stated that RMO3 “seemed to be looking down at my wrists.” And that once RMO3 and RMO4 realized that she was African American they had no real desire to engage in conversation because she did not fit the stereotype of the candidate they wanted. Complainant stated that her interviewers asked questions, which seemed to be written by someone who was an entry level EEO specialist instead of someone at a more advanced level. Complainant asserted that she had superior experience than the selectee, including her work as an EEO case manager at the Unites States Postal Service (USPS) reviewing reports of investigation for sufficiency and training EEO investigators. Complainant stated that she had previously worked as an EEO investigator and worked at the Transportation Security Administration (TSA) for 6 ½ years as an EEO Specialist. Complainant also pointed out that she had a Bachelor’s degree, Master of Business Administration (MBA) degree, and Juris Doctorate degree. 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 February 7, 2020, motion for a decision without a hearing. On April 30, 2020, the AJ issued a decision by summary judgment and found no discrimination. The AJ found that apart from Complainant’s own assertions, there was nothing in the evidentiary record to support a finding of discrimination. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). 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. 2020003986 4 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, Complainant 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 her favor. Complainant’s allegation that she was not selected for the position at issue because of her race, disability,2 and/or age gives rise to a claim of disparate treatment. A claim of disparate treatment is examined under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. 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 its actions, 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). 2 It is undisputed by the Agency that Complainant was an individual with a disability within the meaning of the Rehabilitation Act. 2020003986 5 Assuming, arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated a legitimate, nondiscriminatory reason for its action. The Agency explained that, following the second interview, Complainant was not selected for the position because the Agency was looking for a candidate who could connect with complainants towards resolving and timely processing complaints, noting they needed more staff who could talk with people, and Complainant seemed unengaged and was late for her second interview. The Agency also explained that Complainant did not score as well as Selectee on the performance-based questions during the interview. Complainant, however, argues that her experience and education more than qualified her for the position and exceeded that of the selectee. 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). 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). Upon review of the evidence of record, which includes the application materials, we find that Complainant has not established that her qualifications were plainly superior to those of the selectee. The written application materials show that both Complainant and the selectee had significant qualifications for the position. While their qualifications may have differed somewhat, we do not find that Complainant’s were plainly superior. As the written application materials indicated that the two candidates were, at best, equally qualified for the position, the interviews resulted in the final decision. In sum, the Agency officials who conducted the second interview found the selectee to be more engaged and have better in-person communication skills - qualities they were looking for in filling the position. Although Complainant has alleged that the Agency treated her discriminately, we find that Complainant has failed to prove, by a preponderance of the evidence, that the selection at issue was motivated in any way by Complainant’s race, disability, and/or age. Therefore, her claim of disparate treatment fails. 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. 2020003986 6 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. 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. 2020003986 7 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 22, 2021 Date Copy with citationCopy as parenthetical citation