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

Equal Employment Opportunity Commission

Nov 16, 2022

Appeal No. 2022001287 (E.E.O.C. Nov. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erich A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022001287 Hearing No. 532-2021-00006X Agency No. 200H-0541-2020103217 DECISION On January 10, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 13, 2021 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Dental Assistant at the Agency’s Louis Stokes Medical Center in Cleveland, Ohio. On April 21, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of his race (African American) and sex (male), when on May 19, 2019, he became aware that he was not selected for the Lead Dental Assistant position, Vacancy Announcement Number CBBE-19-MF-10455008- BU1. 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. 2022001287 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On August 3, 2021, the AJ entered a Notice of Intent to Issue Summary Judgment in favor of the Agency. Complainant filed his response in opposition.2 On November 30, 2021, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. On appeal, Complainant’s Counsel argues, among other things, that the AJ ignored numerous genuine issues of material fact. Complainant’s Counsel further argues that the Agency used a biased selection process which unfairly favored the selectee, and the AJ should have authorized more time to discover evidence supporting Complainant’s case. ANALYSIS AND FINDINGS 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. 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. Here, Complainant has failed to point to any particular evidence in the investigative file or other evidence of record that indicates such a dispute. Our review of the evidence of record produced during the investigation reflects that it has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003) (AJ may issue a decision without a hearing only after determining that the record has been adequately developed). 2 On appeal, Complainant asserts the Agency’s own motion for summary judgment was untimely filed. Even if that is true, EEOC’s regulations allow for an AJ to file, sua sponte, an intent to decide a case without a hearing by summary judgment. See 29 C.F.R. § 1614.109(g)(3). The AJ issued such a notice and provided Complainant with an opportunity to respond before issuing her summary judgment decision. 2022001287 3 While Complainant’s Counsel maintains that he should have been allowed more time to retrieve evidence supporting Complainant’s claims, the record reveals that he was afforded sufficient time by the AJ to raise disputed material facts in this matter. 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 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). The instant record reflects that the criteria and qualification for the Lead Dental Assistant position included: citizenship, six months experience, completion of an accredited program recognized by the department of education, dental radiography license, and one-year specialized experience equivalent to GS-6. The record also reflects that a three-member panel was assembled in order to make the selection for the available position. The Dental Service Chief (Chief) (Caucasian male) served as the selecting official. Chief stated that Complainant met the minimally qualified requirements. He further stated, two internal candidates, including Complainant and the eventual selectee (Caucasian female), as well as an external candidate, were referred for consideration. Chief stated that the three candidates received an interview. Chief noted that Complainant lacked the Dental Assistant National Board (DANB) and the Dental Anesthesia Assistant (DAA) qualifications. He further noted that the Selectee had extensive experience as an oral and maxillofacial surgery assistant with extensive experience as a sedation assistant. Chief maintained that certifications by DANB and DAA were most important and required in oral surgery offices where sedations are performed. 2022001287 4 Chief also noted that the DANB is listed in the VA qualification standard for GS-7 assistants. Chief stated that a Panel Member, the Oral Surgery Supervisor (OS Supervisor), had worked with the Selectee, as well as with the two internal candidates. Chief stated that race and sex were not considered in Complainant's non-selection. OS Supervisor (Caucasian male) stated that Human Resources screened, determined the qualifications, and referred two qualified candidates to Chief. He stated that Complainant was minimally qualified and that a lead dental assistant must be a Certified Dental Assistant (CDA) and maintain certification while holding the position. OS Supervisor noted that Complainant qualified for the Lead Dental Assistant vacancy but did not possess the "preferred experience," as with "CDA and DAA certifications." Furthermore, as the AJ noted, when looking to the grids used in the interview process, the Selectee scored a 28/30 from Chief and a 30/30 from OS Supervisor in Competencies on the grid. Complainant only scored a 11/30 from Chief and a 16/30 from OS Supervisor in Competencies on the grid. For the other rankings, Complainant received a three for interpersonal effectiveness, a three for customer service, a 4 for flexibility/adaption, a 3 for creative thinking, a 3 for system thinking, and a 3 for organization stewardship from Chief. Comparatively, the Selectee received 5’s across the board in those categories from both Chief and OS Supervisor. The burden now shifts to Complainant, to establish that the Agency’s proffered reasons are pretext for discrimination. Complainant questions the scoring system used by the selecting official and argues that CDA and DAA certifications are not needed/required for the position at issue. However, the record is clear that these certifications are listed as preferred experience in the Agency’s posted vacancy announcement for the position sought in this matter. Complainant concedes he does not have these certifications. To the extent Complainant challenges the Agency's use of the preferred criteria, we find no evidence of a discriminatory motive. The record indicates that all applicants were measured according to the same criteria. We have consistently recognized that an agency has broad discretion to carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). We find that the Selectee had superior qualifications to Complainant due to her oral surgery assisting experience, the preferred criteria of a CDA and DAA, and her ranking by the officials involved in her selection. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 2022001287 5 CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision concluding no discrimination was established. 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. 2022001287 6 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 November 16, 2022 Date