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

Equal Employment Opportunity Commission

Mar 17, 2022

Appeal No. 2020004536 (E.E.O.C. Mar. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emery S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004536 Hearing No. 490-2020-00052X Agency No. 2001-0614-2019103317 DECISION On August 10, 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 21, 2020, final order 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Administrative Officer, GS-12, at the Agency’s Medical Center in Memphis, Tennessee. Complainant is Hispanic of Puerto Rican descent. He was temporarily promoted and served in the position of Health System Specialist, Executive Assistant to the Chief of Staff (Chief) from September 2, 2018, through April 4, 2019. Complainant received an Outstanding performance evaluation from the Chief for his work during the temporary detail. Report of Investigation (ROI) at 158-62. The Agency advertised two vacancies for that same position under a single announcement, Vacancy Announcement Number RZ-19-DC-10387371-T5. 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 2020004536 Complainant applied for the position, but the Hiring Manager wanted two separate announcements for each executive assistant position. Therefore, the vacancy announcement Certificate was unused. Complainant was notified on February 19, 2019, that he was not selected for the position. ROI at 60-71. On February 20, 2019, the Agency advertised the Health Systems Specialist position (Executive Assistant to the Chief of Staff), vacancy number RZ-19-DC-10429077-R, for which Complainant applied. This was one of the re-posted positions. ROI at 24.2 A Health System Specialist (Specialist) provided the scoring criteria and resumes to the two reviewing officials used during the selection process. The Specialist did not develop the scoring criteria. ROI at 85-7. The two reviewing officials were Executive Assistants to Medical Center Directors from North Carolina and Missouri (Executive Assistants 1 and Executive Assistant 2). The reviewing officials were never provided information identifying the national origin or race of the applicants. ROI at 80, 87. The reviewers reviewed and ranked the 14 applicants based on applicants’ resumes and selection criteria provided by the Health Specialist. ROI 85-94. Executive Assistants 1 and 2 chose the two applicants with the highest ratings and selected them for an interview. ROI at 177. One of the two top candidates was the Selectee (Selectee), whose credentials and experience Executive Assistants 1 and 2 determined were exemplary because he possessed diverse experience in interagency collaborations and operations, employee relations, and patient and employee complaint resolution skills. The reviewers found that Selectee also possessed both administrative and clinical management skills, as well as operations and leadership skills. Selectee ranked first out of 14 for his “superior” resume. ROI at 177,183-89. Executive Assistants 1 and 2 found that Complainant was also a strong candidate as he possessed other strong skills and experience. However, they determined that he did not have “much experience with administrative operations.” ROI at 181. As such, Executive Assistants 1 and 2 ranked Complainant seventh of 14 candidates. ROI at 177-79. Complainant was on the ranked list but he was not one of the top 2 candidates. Executive Assistants 1 and 2 only provided the names of the top two candidates (Selectee and one other candidate (Candidate)) to the selecting official for interview, therefore Complainant was not interviewed, as he did not rank higher than either Selectee or Candidate. ROI at 177. The Chief was the selecting official. ROI at 61. After conducting interviews for Candidate and Selectee, Selectee received the top interview score. Based on his superior ranking and top interview score, the Chief selected Selectee for the position. ROI at 74. Complainant believed that he was intentionally blocked from interviewing for the permanent position because of his Hispanic race. Complainant argued that since he did not get an interview, “irregularities must have ‘plagued’ the selection process”. ROI at 45, 62-63. Based on that belief, Complainant contacted the EEO Counselor on May 1, 2019. On August 6, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic) and national origin (Puerto Rican) when: 2 We note that Complainant did not apply for the other separate position. ROI at 81. 3 2020004536 1. On February 19, 2019, Complainant was notified of his non-selection for the Health System Specialist (Executive Assistant), Vacancy Announcement Number RZ-19-DC- 10387371-T5, GS-0671-13; and 2. On April 12, 2019, Complainant was not selected for the position of Health Systems Specialist (Executive Assistant to Chief of Staff), vacancy number RZ-19-DC-10429077-R. The Agency accepted claim 2 for investigation.3 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 timely requested a hearing. On June 2, 2020, the Agency filed a Motion for Summary Judgment (MSJ). Complainant responded; and the Agency then filed another response. In his response, Complainant asserted that he was not selected for an interview because the HR Specialist, who is aware of his race and national origin, deliberately failed to have a major scoring discrepancy reconciled at the first phase of the hiring process. See Complainant’s Resp. to Uncontested Fact Nos. 14, 15, 18, 20. Complainant claimed that his resume scores of 6, 17, and 14 from three Subject Matter experts, (SME [ SME1, SME2, and SME3]) respectively, should have been challenged by the HR Specialist because the 6 was so much lower than the other scores. In responding to Complainant’s claims, the Agency asserted that Complainant’s scores from the three SMEs correspond to another job posting that precedes the one at issue here. This, the Agency asserted, is evident from the dates on the scoresheets. See ROI at 101 - SME2’s scoresheet dated January 16, 2019; 102 - SME1 scoresheet dated January 17, 2019; 103 - SME3’s scoresheet dated January 18, 2019. According to the Agency, since the scores from the three SMEs occurred in January, but the job at issue in this case was not advertised by the Agency until February 20, 2019, those scores could not be applicable. The Agency also observed that Complainant noted that he applied for the relevant job on February 26, 2019. See Complainant’s MSJ Resp at 8. See Vacancy No. RZ-19-DC-10429077-R, attached as Exhibit A to MSJ. The AJ granted the Agency’s June 2, 2020, motion for a decision without a hearing and issued a decision without a hearing on July 14, 2020. In granting the Agency’s motion, the AJ observed that the rating officials referenced by Complainant in support of his complaint were not the rating officials for vacancy number RZ-19-DC-10429077-R, which is the sole issue in this case. 3 The Agency dismissed claim 1 for untimeliness pursuant to 29 C.F.R. § 1614.107(a)(2). Complainant did not challenge the dismissal on appeal, and we will not review the dismissal of this claim. See Equal Employment Opportunity Management Directive (EEO MD-110), at Chap. 9, § IV.A.3 (Aug. 5, 2015) (stating that although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal). 4 2020004536 Further, the AJ observed, because the rating officials don’t align with this vacancy, the time periods associated with the vacancy do not match up. The AJ found that Complainant had not raised any genuine issue of material fact that the Agency’s business reasons for its actions were illegal or that the stated reason were pretextual. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contests the AJ’s decision and the Agency’s Final Order. Complainant reiterates his allegations and asserts that the AJ “sided” with the Agency regarding unanswered “follow up” questions to the Selecting Official. He argues that he was not permitted to be interviewed for the position which he had been successfully serving in and that this constituted discrimination. On appeal, the Agency asserts that although Complainant appeared to articulate a prima facie case, he could not show that the Agency’s legitimate, non-discriminatory reasons for his non- selection were a mere pretext to mask discrimination in the hiring process. The Agency requests that the AJ’s decision and the Agency’s Final Order be affirmed because they correctly state the facts and apply the law. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). 5 2020004536 ANALYSIS AND FINDINGS AJ’s Issuance of a Decision Without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. 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). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor. 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. Affs. 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. 6 2020004536 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). Here, the record shows that Executive Assistants 1 and 2 reviewed the resumes and were not aware of Complainant’s race and national origin. They ranked Complainant seventh of 14 candidates. Executive Assistants 1 and 2 recommended Selectee for an interview because he possessed both administrative and clinical management skills, as well as operations and leadership skills. He also received a superior resume ranking. Selectee and Candidate were the top ranked candidates by Executive Assistants 1 and 2 and were interviewed by the Chief and three other officials. Selectee received the top interview score. Therefore, the Chief chose Selectee for the position. Included in the record are the Best Qualified ratings which reflects the rating factors, applicants’ point values, and raters’ comments for each applicant. For the Knowledge, Skills and Abilities (KSAs), Complainant scored 12 while Selectee and Candidate each scored 20. The comments for applicants also show that Complainant did not have much experience with “admin” operations, but “has strong background to include Voluntary time.” The comments show that Selectee had experience in data and support of executive leadership; and “HAS background is a huge plus.” ROI at 179-182. The Agency has articulated a legitimate non-discriminatory reason for its action. We next turn to Complainant to show pretext. In an attempt to show pretext, Complainant argued that the Specialist deliberately failed to have a major scoring discrepancy reconciled at the “first phase” of the hiring process in order to disqualify him. However, he did not show that the scoring by SME1, 2, or 3 was used for the selection in this case or that the SMEs were even involved in the selection process for the position at issue. There is no evidence in the record to establish that the rankings by the three SMEs was reflected in the ratings and rankings by Executive Assistants 1 or 2. EEOC case law is replete with cases supporting the principle that, absent a showing that Complainant was the best-qualified candidate, management did not demonstrate discriminatory animus when the most qualified candidates were selected. See e.g., Judson v. Dep't of Veterans Affs., EEOC Appeal No. 0120141750 (May 26, 2016) (declining to find a pretext of discriminatory action when the Complainant was not selected due to his application rating of five out of eight candidates); Whitfield v. Dep't of the Army, EEOC Doc. 0120082612 (July 11, 2012) (finding that the Complainant failed to show discrimination when the Complainant's qualifications were not plainly superior to the selectees for two separate postings); King v. Dep't of Veterans Affs., EEOC Appeal No. 012022423 (Nov. 2, 2012) (Complainant was not ranked among the top candidates and presented no evidence of pretext). Therefore, Complainant does not prevail because he did not show that he was not selected based on his protected bases. Rather, Complainant’s non-selection was based on his low resume ranking as Executive 1 and 2 determined that he did not have much experience with administrative operations. 7 2020004536 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 Order adopting the AJ’s decision finding no discrimination. 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. 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. 8 2020004536 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 March 17, 2022 Date