[Redacted], Delbert S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 31, 2022

Appeal No. 2020005015 (E.E.O.C. Mar. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Delbert S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020005015 Agency No. 2003-0740-2019-102068 DECISION On August 27, 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 August 4, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Prosthetic Representative, GS-11, at the Agency’s Prosthetic Department in Valley Coastal Bend Health Care Center (HCC) in Harlingen, Texas. Complainant reported that he applied for over 300 jobs at Valley Coastal Bend, from GS-5 to GS-12, and was not been selected a single time over an eight-year period. See Report of Investigation at 86. He explained that his former supervisor (Supervisor) stated to him and other employees that he would make sure that Complainant was never hired back at Valley Coastal Bend. Id. 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. 2020005015 2 Complainant also reported that he heard his Supervisor refer to African Americans using a racial slur. In support of his discrimination contention, Complainant reported specific occasions he was not selected for employment at Valley Coastal Bend. First, Complainant reported that in January 2019, he became aware that he was not selected for the position of Supervisory Inventory Management, GS-11 (Position 1). ROI at 87. He was not provided a reason for this non-selection, but rather stated that USAJobs, the federal government hiring website, simply listed the application status as "received." Id. Complainant was not interviewed, and he was not aware of the identity of the selecting official for the position. Id. at 88. Second, Complainant reported that on March 4, 2019, he became aware that he was not selected for the position of Administrative Officer, GS-11 (Position 2). Id. at 90. Complainant became aware that he was not selected after receiving a notification from USAJobs. Id. Third, on March 5, 2019, he became aware that he was not selected for the position of Prosthetics Representative, GS-6 (Position 3). Id. at 92. He reported that he received a notice of non- selection from USAJobs. Id. Fourth, on March 8, 2019, Complainant became aware that he was not selected for the position of Health System Specialist, GS-9 (Position 4). Id. He became aware of his non-selection through a USAJobs notification. Id. at 94. Finally, Complainant reported that on April 29, 2019, he became aware that he was not selected for the position of Management Analysist, GS-9 (Position 5). Id. at 97. As in the above instances, he received this information through USAJobs. Id. 96-98. For each of the above positions, Complainant reported that he did not recall who the selecting official was, nor who the selected candidates were. See e.g., ROI at 96-98. Complainant alleged that his race, religion, and prior EEO activity were factors in his nonselection for each position. See e.g., ROI at 509-512. Regarding Position 1, the Human Resources Specialist of Recruitment and Placement (Recruitment Specialist) confirmed that Complainant applied to Position 1. Id. at 201. However, she explained that Complainant received a letter indicating that he was not referred and found ineligible based on being outside of the area of consideration. Id. The record contains an email from USAJobs indicating that Complainant was not considered for Position 1, received by Complainant on December 6, 2018. Id. at 274. As to Position 2, the Chief of Geriatric and Extended Care (Chief of Geriatric Care) explained that when interviewed on the phone for the Administrative Officer position, Complainant answered questions thoroughly. Id. at 144. The Human Resources Specialist of Staffing (Staffing Specialist) stated that Complainant was referred and qualified for Position 2. Id. at 187. She also confirmed that he interviewed for the position, according to the selecting officials rating sheets and memorandum. Id. As to why Complainant was not selected for the role, she explained that the selectee (Selectee 2) scored higher than Complainant on the rating sheets. Id. at 189. 2020005015 3 The Associate Chief of Nursing Services (Nursing Chief) explained that although Complainant did well on the interview for Position 2, Selectee 2 answered questions more thoroughly and demonstrated extensive knowledge of the Agency system. Id. at 224. She also stated that questions were asked to all candidates in the same order, and all interviews were conducted by phone. Id. As to Position 3, the HR Specialist provided that Complainant was referred and qualified for the position. Id. at 171. However, based on the documents submitted, he was not interviewed. Id. She explained that all resumes were reviewed and scored, and the top four scores were interviewed. Id. As to Position 4, the Recruitment Specialist explained that Complainant was referred and qualified for the position, however, he declined the interview. Id. at 212. For Position 5 the Chief of Health Administrative Service (Chief of Administrative Services) stated that Complainant was referred and qualified for the position. Id. at 158. However, no one was interviewed. Id. A panel made a decision based on a review of resumes according to an overall rating score. Id. She explained that Complainant did not score the highest on the rating final score evaluating his knowledge, skills, and abilities. Id. at 160. His score was 34, while the selected candidate (Selectee 5) had a score of 52. Id. The Recruitment Specialist confirmed that there were no interviews conducted for this role. Id. at 215. On February 20, 2019, Complainant contacted an EEO Counselor. On May 29, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), religion (Muslim), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. In January 2019, he became aware that he was not selected for the position of Supervisory Inventory Management GS-11; 2. On March 4, 2018, he became aware that he was not selected for the position of Administrative Officer, GS-11; 3. On March 5, 2019, he became aware that he was not selected for the position of Prosthetics Representative, GS-6; 4. On March 8, 2019, he became aware that he was not selected for the position of Health System Specialist, GS-9; and 5. On April 29, 2019, he became aware that he was not selected for the position of Management Analysis, GS-9. 2020005015 4 At the conclusion of 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 requested an immediate final agency decision (FAD). In the FAD, at the outset, pursuant to 29 C.F.R. § 1614.107(a)(2), Complainant’s claim 1 was dismissed for untimely EEO Counselor contact. In this regard, the Agency determined that Complainant had actual knowledge of his nonselection for Position 1 on December 6, 2018, and did not contact an EEO Counselor until February 20, 2019, more than 45-days later. Therefore, the Agency dismissed the claim as untimely. As to claims 2-5, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that management articulated legitimate, nondiscriminatory reasons for each nonselection. Moreover, the Agency determined that Complainant failed to present a persuasive pretextual argument. As such, the Agency found that Complainant failed to establish that he was not selected for any of the positions listed herein due to discrimination. CONTENTIONS ON APPEAL On appeal, Complainant argues that certain statements in his case are not complete and state only partial truths. He did not provide any additional statements. In response, the Agency argues that Complainant failed to produce any additional information or evidence to dispute the Agency’s position. ANALYSIS AND FINDINGS Untimely Counselor Contact (claim 1) EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2). 2020005015 5 Here, Complainant was informed that he would not be considered for Position 1 on December 6, 2018 via an email from USAJobs. It is undisputed that Complainant initially contacted an EEO Counselor on February 20, 2019, which is beyond the 45-day limitation period. On appeal, Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Therefore, we find that the Agency's dismissal pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact, was proper. Decision Without a Hearing 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 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”). Disparate Treatment (claims 2-5) To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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. Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248. 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review, we find that Complainant has not established a prima facie case of discrimination as he failed to establish a nexus between his protected classes and any of the various non- selections at issue. In this regard, we note that there is no indication that the race or religion of any of the applicants was included or requested as part of the application materials. There is no basis for assuming that the HR officials or selection officials reviewing résumés had any information showing the race or religion of Complainant or any other applicant. Therefore, to the extent that Complainant’s application was screened out without proceeding to an interview, there is no basis to assert that this occurred as a result of discriminatory animus. 2020005015 6 To the extent that Complainant was interviewed for Position 2, the interaction occurred telephonically and therefore his race was not evident, and there is no evidence that either his race or religion was discussed or considered. Complainant has explicitly stated that he does not recall who the selecting officials or selectees were and has not provided their races or religions. As to Position 3, the HR Specialist explained that Complainant was not interviewed based exclusively on the documents submitted in the application. As to Position 4, the record reflects that contrary to Complainant’s statements, he was offered an interview but declined. As to Position 5, Complainant did not score the highest rating on the final score evaluating his knowledge, skills, and abilities. His score was 34, while the selected candidate (Selectee 5) had a score of 52. There is no indication in any of these instances that Complainant’s race or religion were considered or even that they were in any way apparent. Complainant has failed to present any evidence supporting an inference of discrimination. In addition to Complainant’s failure to establish a prima facie case, the Agency articulated legitimate nondiscriminatory reasons for Complainant’s non-selections. Complainant has not provided any argument or evidence on appeal which highlights or attempts to show pretext. In conclusion, we find that Complainant has failed to prove that the Agency's reasons for its actions were a pretext to mask discrimination based on his protected classes or show that the Agency was motivated by discriminatory animus. Upon review, we find that Complainant has not established that he was subjected to discrimination as alleged. Therefore, we find that the Agency’s decision to be proper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFRIM the Agency’s final decision dismissing the complaint. 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. 2020005015 7 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. 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. 2020005015 8 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 March 31, 2022 Date