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

Equal Employment Opportunity Commission

Sep 16, 2021

Appeal No. 2021004963 (E.E.O.C. Sep. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chuck B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004963 Agency No. 200H-0523-2018104459 DECISION On November 20, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 18, 2019 final decision 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.2 The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment and had applied for several positions with the Agency. On June 17, 2017, the Agency posted a vacancy announcement for a Clinical Pharmacy Specialist, Inpatient-Internal, under Vacancy Announcement No. RS-17-DS-1979354-BU. The vacancy announcement listed vacancies in two duty locations: West Roxbury and Brockton campuses, in Massachusetts. 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. 2 In the same November 20, 2019 Notice of Appeal, Complainant also appealed two additional FADs (Agency No. 200H-0631-2018105921 and Agency No. 200H-V101-2018105923), which the Commission separately addresses in EEOC Appeal Nos. 2020001453, 2021004962. 2021004963 2 The vacancy announcement noted in the “Who May Apply” section that the area of consideration was limited to Current Permanent Agency Boston Healthcare System employees only. Complainant applied for the position and subsequently received an email notifying him that he was ineligible for consideration because he did not meet the requirements of the “Who May Apply” section. On November 22, 2017, the Agency posted a vacancy announcement for a Pharmacist (Service Chief) in Boston, Massachusetts under Vacancy Announcement No. CAZW-10086019-18-SC. Complainant was referred for consideration as a qualified candidate but was not referred for an interview. On March 21, 2018, he was sent an email notifying him that he was not selected for the Pharmacist (Service Chief) position. On September 11, 2018, Complainant filed a formal EEO complaint alleging the Agency discriminated against him on the bases of national origin (Nigerian), race (Black), and age (YOB 1955) when: 1. On August 17, 2017, Complainant was informed that Complainant was rated “ineligible for consideration” for the position of Clinical Pharmacy Specialist as announced of Vacancy Announcement No. RS-17-DS-1979354-BU; and 2. On March 21, 2018, Complainant was informed that Complainant was not hired for the position of Chief of Pharmacy as announced of Vacancy Announcement No. CAZW-10086019-18-SC. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). After Complainant failed to request a hearing, the Agency issued a final agency decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency found that Complainant had not been discriminated against as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends among other things, that the FAD should be reversed, and a finding of discrimination made. Complainant alleges he was more qualified than the candidates selected for interview. He challenges the rating process used by the Agency arguing the process was subjective rather than objective, and the results were “full of statistical errors of intentional or unintentional biases.” Accordingly, Complainant requests that the Commission reverse the FAD. 2021004963 3 ANALYSIS AND FINDINGS Disparate Treatment 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). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination, the Commission finds that Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. Regarding Claim 1, a Human Resources Specialist (Recruitment and Placement) (HRS-RP) for the Agency’s Boston Healthcare System stated that the job announcement required submission of Form SF 50, identifying an applicant's status as a Current, Permanent, Agency Boston Healthcare System Employee. ROI at Tab 7-2, p. 81. If the applicant did not provide this document, they were not eligible for consideration. She stated that Complainant did not meet the “Area of Consideration” because the Complainant was not a current, permanent VA Boston Healthcare System employee, which was verified by the resume and failure to provide an SF 50. Id. With respect to Claim 2, a four-member panel was used to conduct resume review and interview the referred applicants. The panel utilized a resume screening tool to independently review and score the six qualified applicants for the resume review portion of the process. The resumes and cover letters were reviewed and scored on five categories (Pharmacy Operations Management Experience; Education, Training, Certifications; Publications, Honors, Awards; VA Knowledge; and Overall Resume Review). ROI at Tab 7-4, p. 101; Tab 7-7, p. 137. The rating sheet for the evaluations lists the meaning of each numerical score (1-5) rating within each of the five categories. ROI at Tab 7-5, p. 123. The independent scoring was provided to the Health System Specialist (PM1) on the panel, who aggregated the scores for the Deputy Director, the Selecting Official for the position. PM1 explained the scores were combined and applicants were ranked based on their total score. Because Complainant scored in the bottom half of the applicants, he was not referred for an interview. ROI at Tab 7-4, p. 100. A January 9, 2018 email from PM1 to the rest of the panel lists a table with the four reviewers scores of all six applicants, and the total scores for each applicant. 2021004963 4 The email noted that all reviewers agreed on the top three candidates, and that there was a significant difference between the top three scores (170, 166-Selectee, 160) and the bottom three scores (114-Complainant, 113, 103.5). ROI at Tab 7-4, p. 109. A review of the Application Rating and Evaluation Charts by each panelist shows that the panelists recognized Complainant’s achievements in the areas of Education, Training, Certification, and Pharmacy Operations Management Experience. The rating sheets also show all four panel members found Complainant’s resume was not as strong in the areas of Publications, Honors, Awards and VA Knowledge when compared with the three candidates that were referred for interviews, including Selectee. ROI at Tab 7-4, pp. 111-114; Tab 7-7, pp. 138-9. One panel member, a Primary Care Physician (PM2), detailed the areas where he had found Complainant’s resume deficient: little recent experience in Pharmacy Operations Management; no direct supervisory role of other individuals within the medical center where Complainant had managed a variety of pharmacy processes from 2001-2016; a lack of Agency or government experience; few awards were listed and none of the awards involved leadership skills; and Complainant did not list any publications, presentations, or academic appointments. ROI at Tab 7-7, pp. 138-139. PM2 also explained the factors that led to his ratings of Selectee such as: her experience at the Agency’s Salem Medical Center where she was the Acting Chief in 2017, Associate Chief of Pharmacy for Clinical and Educational Services, and Residency Program Director; 11 years of experience at the Agency’s Boston Healthcare System as a Clinical Pharmacy Specialist, Geriatrics and Residency Program Direction; and her extensive list of honors/awards in pharmacy and clinical practice, including multiple grants, publications, posters, and invited presentations. Id. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. 2021004963 5 CONCLUSION 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 decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2021004963 6 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 September 16, 2021 Date