[Redacted], Cleo G., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionOct 18, 2021Appeal No. 2021003227 (E.E.O.C. Oct. 18, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cleo G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003227 Hearing No. 570-2013-00343X Agency No. 2004-0010-2012100843 DECISION 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 April 16, 2021 final order concerning an 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. BACKGROUND During the period at issue, Complainant worked as an Administrator Officer, GS-12, at the Agency’s VA Medical Center in Bedford, Massachusetts. On March 13, 2012, Complainant filed a formal EEO complaint claiming that the Agency unlawfully retaliated against him for prior protected EEO activity2 when he was not selected for the position of Health Science Specialist, GS-0601-14, Vacancy Announcement 388232, vacancy announcement number 10-343, in 2011. 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 The record reflects that Complainant filed prior EEO complaint in 2007, 2009, 2010, and 2011. 2021003227 2 After an investigation into the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. However, the Agency dismissed the formal complaint on procedural grounds. On appeal, the Commission reversed the Agency’s dismissal and remanded the claim to the Agency for further processing. See EEOC Appeal No. 0120122498 (Sept. 26, 2012). On remand, the first assigned AJ (AJ1) proceeding with scheduling, and thereafter, the Agency, on August 27, 2014, filed a motion for summary judgment (“Agency Motion”) and Complainant filed a response. The case was then transferred to another AJ (AJ2) who held an initial conference on March 5, 2021, and denied Complainant’s motion to compel. On March 15, 2021, AJ2 denied Complainant’s request for reconsideration. On March 29, 2021, AJ2 issued a notice of intent to issue a decision without a hearing in favor of the Agency. After neither Complainant nor the Agency responded to AJ2’s notice, AJ2 issued a decision, on April 14, 2021, by summary judgment in favor of the Agency. On April 16, 2021, the Agency issued a final decision implementing AJ2’s finding of no discrimination. The instant appeal followed. On appeal, Complainant argues that AJ2 was not impartial and erred when he denied Complainant’s motion to compel and request for reconsideration. Complainant further argues that the Agency’s reasons for his non-selection for the GS-14 position were pretext for discrimination given that the Agency previously failed to select him for the same position at the GS-13 level in 2009. ANALYSIS AND FINDINGS Preliminary Matters - Denial of Motion to Compel As an initial matter, we address Complainant’s arguments on appeal that AJ2 improperly denied Complainant’s motion to compel as well as Complainant’s subsequent request for reconsideration. The record indicates that pursuant to an April 24, 2014 Acknowledgement and Order (“A&O”), the parties were authorized to initiate the discovery process for a period of 90 days from receipt of the A&O, or by April 29, 2014. Consequently, the parties had until July 28, 2014 to complete discovery. The A&O further informed the parties that motions to compel were due no later than ten days after receipt of a response from the other party. Here, Complainant submitted his discovery first request in May 2014 and received an initial response from the Agency on June 27, 2014. Thereafter, Complainant filed a second discovery request on July 21, 2014, and the Agency did not respond. Consequently, on August 7, 2014, Complainant filed a motion to compel. Our review of the record reflects that, pursuant to the A&O, Complainant had ten days after June 27, 2014, the date he received the Agency’s response, to file a motion to compel. Therefore, the 2021003227 3 motion to compel was untimely with respect to the first request. We note that the motion to compel would be timely with respect to the second discovery request, given that Complainant did not receive a response from the Agency regarding this request. However, we agree with the AJ that the second discovery request was a duplicate of the first. Therefore, Complainant cannot attempt to circumvent the deadline to timely file a motion to compel by resubmitting a duplicate discovery request at a later date. For these reasons, we find that AJ2 properly denied Complainant’s motion to compel in the initial March 5, 2021 Order and subsequent March 15, 2021 denial of Complainant’s request for reconsideration. Merits of the Claim The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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. 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 Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community 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). 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 2021003227 4 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The AJ properly determined that Agency articulated legitimate, non-discriminatory reasons for not selecting Complainant for the GS-14 position of Health Science Specialist. Complainant explained that the position he applied for was in the Agency’s Office of Research Oversight (ORO), Northeast Regional Office located in Bedford, Massachusetts. Consequently, Complainant clarified that his current immediate supervisor was not involved in his non- selection. Rather, Complainant identified the Regional Director of ORO as the responsible management official. Complainant further indicated that the ORO Regional Director was aware of his prior EEO activity as early as September 2007, when Complainant identified the ORO Regional Director as a responsible management official in a prior complaint. However, the ORO Regional Director explained that no selection was made for the position at the GS-14 level and he indicated that he never opened the certificate of eligible candidates for the GS-14 position. The ORO Director clarified that the ORO Chief Officer directed that the Agency would choose a candidate at the GS-13 level instead of at the GS-14 level. Consequently, the ORO Regional Director was the selecting official for the GS-13 position vacancy. The ORO Chief Officer indicated that he was not involved in Complainant’s prior EEO activity. However, the ORO Regional Director informed him in November 2010, of Complainant’s prior EEO activity. The ORO Chief Officer stated that in the fall of 2010, he requested that all ORO supervisors with vacant GS - 12/13/14 positions fill such positions at the GS - 12/13 level due to very high concentration of GS-14 personnel in ORO, concerns about future Agency budget constraints, and a succession planning strategy to provide opportunities for career advancement within ORO. Consequently, the ORO Chief Officer stated that when the ORO Regional Director received the list of eligible candidates for the Health Science Specialist position, he reminded the ORO Regional Director to hire at the GS - 12/13 levels, and the ORO Regional Director followed this instruction. A copy of the Health Science Specialist position vacancy indicates that the position at issue was advertised at the GS - 13/14 grade levels. Consequently, the ORO Chief Officer further indicated that only candidates who applied to the GS-13 position were selected for interviews. As a result, Complainant did not receive an interview because his name only appeared on the GS-14 list of eligible candidates. 2021003227 5 We further address Complainant’s argument that Agency’s decision to make a selection at the GS-13 level opposed to the GS-14 level was pretext for discrimination given Complainant’s prior 2009 non-selection for the same position at the GS-13 level and the Agency’s selection of a candidate at the GS-14 level in August 2009. We find that AJ2 properly determined that this argument is not supported by the record. We note, as did AJ2, that the financial concerns regarding the selections in 2009 and 2010 occurred during different fiscal years. Additionally, Complainant has not provided any evidence to dispute the ORO Regional Director’s testimony he did not know that Complainant had applied for the GS-14 position given that he did not view the list of GS-14 certificate of eligible candidates. Therefore, Complainant has not demonstrated that the Agency’s proffered reasons for his non-selection were a pretext for unlawful retaliation. CONCLUSION The Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 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 2021003227 6 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. 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. 2021003227 7 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 October 18, 2021 Date Copy with citationCopy as parenthetical citation