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

Equal Employment Opportunity Commission

Mar 7, 2022

Appeal No. 2020004582 (E.E.O.C. Mar. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eldon P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004582 Agency No. 200P-0612-2019102286 DECISION On August 15, 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 15, 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., 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. 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 Supervisory Police Officer (Instructor) at the Agency’s Northern California VA Healthcare System in Mather, California. On April 16, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), national origin (Hispanic), sex (male), color (White), disability (physical-degenerative arthritis of the knee), age (48), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when: 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 2020004582 1. On March 5, 2019, Complainant learned via email sent by the Chief of VA Police, that he was not selected for promotion to VA Police Lieutenant, Supervisory Police Officer (GS- 0083-8), announcement no. CBEC-10397916-19-AP, located in Martinez, and Oakland, California (Position 1); and 2. On March 5, 2019, Complainant learned via email sent by the Chief of VA Police, that he was not selected for promotion to VA Police Lieutenant, Supervisory Police Officer (GS- 0083-8), announcement no. CBEC-10398240-19-AP, located at the Mather Air Force Base, Mather, and in North Valley, Redding, California (Position 2). The Agency accepted the complaint for investigation. The investigation revealed the following relevant facts. On January 15, 2019, the Agency posted vacancy announcements for two positions: for four vacancies in Position 1 and for five vacancies in Position 2. ROI at 163-64; 177-78. Complainant applied, was deemed qualified, and considered for both Position 1 and 2. However, he was not selected for any of the vacancies. ROI at 415-16. The record indicates that a three-member panel reviewed the candidates’ application packages and conducted performance-based interviews for the qualified candidates for both positions. The panel reviewed and evaluated numerical scores for the resume packets and interview portion of the selection process. The panel consisted of a Police Divisional Commander (Commander), a Deputy Police Chief (Deputy), and a Health Systems Specialist (Specialist). ROI at 75-76, 85-93, 94-103, 104-7, 108-18, 119-21, 396-401, 414, 125-28, 243-395. The Chief of Police (Chief) was the selecting official. ROI at 31-71. The panel members submitted the application review scores and interview scores to the Chief. ROI at 94-103, 108-18, 122-30. The Chief selected the candidates for both Positions 1 and 2. The Chief selected four candidates to fill the vacancies in Position 1, and he selected five candidates to fill the vacancies in Position 2. The selectees were: • Selectee 1 (Caucasian white male, with prior EEO activity, no disability, age and national origin unknown) received an overall score of 124.8 points. • Selectee 2 (Caucasian white male, with prior EEO activity, no disability, age and national origin unknown) received an overall score of 115.4 points. • Selectee 4 (Caucasian white male, with disability and prior EEO activity, age and national origin unknown) received an overall score of 114 points. • Selectee 5 (Caucasian white male, with disability and prior EEO activity, age and national origin unknown) received an overall score of 108 points • Selectee 6 (Hispanic male, age, national origin and color unknown, no disability and no prior EEO activity) received an overall score of 105.2 points • Selectee 7 (Caucasian white male, with prior EEO activity and no disability, age and national origin unknown) received an overall score of 98.2 points 3 2020004582 • Selectee 8 (Caucasian white male, with disability and prior EEO activity, age and national origin unknown) received an overall score of 98 points • Selectee 9 (African-American, Black male, with prior EEO activity and no disability, age and national origin unknown) received an overall score of 94.6 points • Selectee 3, who received an overall score of 102.2 points, but declined the offer., As such the position was offered to Selectee 10, (Caucasian white male, with disability and prior EEO activity, age and national origin unknown) who received an overall score of 82.2 points. ROI at 77 and 402. Complainant received an overall score of 104.0 points and was not selected. ROI at 39. Complainant had ranked higher than Selectees 7, 8, 9, and 10. In that regard, the Chief asserted that Complainant met the required qualifications for both positions and received a “relatively” high overall score. However, Complainant’s disciplinary actions history was a key determinant in his non-promotion. The Chief explained that, on October 3, 2010, Complainant received a 14-days suspension for two charges of conduct unbecoming of a Supervisory Police Officer and Failure to Evacuate during a fire drill. On August 28, 2012, a former officer alleged that an incident had occurred at Complainant’s residence that involved alcohol, firearm, and assault. In July 2014, a report was written regarding allegations of threatening behavior by Complainant towards a former officer. On May 25, 2016, a former Associate Director issued a one-day suspension decision to Complainant for two charges of conduct unbecoming of a Supervisory Police Officer/Instructor/Sustained, and Disrespectful and Inappropriate Language to an employee/Sustained. ROI at 72-84, 85-93, 414. 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). In accordance with Complainant’s request, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL Complainant did not submit an Appeal Statement. On appeal, the Agency asserts that the record does not support Complainant’s allegations. The Agency argues that no evidence submitted by Complainant or developed during the investigation of his discrimination claims reflects discriminatory animus on the part of any agency official. Further, the Agency states, Complainant could point to any documentary evidence showing agency personnel subjected him to unlawful treatment because of his protected bases. The Agency requests that the Commission uphold its FAD and dismiss Complainant’s appeal. 4 2020004582 STANDARD OF REVIEW 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 Chap. 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”). ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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. 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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 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). Upon review of the record, we conclude that the Agency has articulated legitimate non- discriminatory reasons for not selecting Complainant for Position 1 or 2. As noted above, the Chief asserted that Complainant met the required qualifications for the positions and received a “relatively” high overall score. However, based on his disciplinary history, the Chief did not select Complainant for any of the vacancies. 5 2020004582 We next turn to Complainant to show pretext. Complainant did not dispute the Chief’s statements. Importantly, at all times, “Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on a prohibited reason”. Complainant v. Dep’t of Veterans Affs., Appeal No. 0120170313 (Mar. 26, 2019), citing St. Mary’s, supra. We also note that the record is devoid of any evidence that the Chief was motivated by discriminatory animus when he considered Complainant’s past disciplinary actions history in bypassing Complainant for promotion to a leadership position. We have stated that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Complainant v. Dep’t of Health and Human Serv., EEOC Appeal No. 0120182538 (Nov. 27, 2019). Additionally, the selectees reflect a diversity of protected bases. Therefore, we find that Complainant’s claims fail. 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. 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. 6 2020004582 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. 7 2020004582 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 7, 2022 Date