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

Equal Employment Opportunity Commission

Apr 22, 2021

Appeal No. 2020000027 (E.E.O.C. Apr. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Greg Y.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000027 Agency No. 20DR-0010-2019100341 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 20, 2019 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. 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 in part, and VACATES in part, the Agency’s final decision and REMANDS this back to the Agency for a Supplemental Investigation as Ordered below. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Health System Specialist/Equal Employment Opportunity (EEO) Manager, GS-0671-13, at the Agency’s VA Medical Center in Boise, Idaho. On November 26, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (White), and age (YOB 1963) when, on September 17, 2018, and October 18, 2018, he was not selected for two GS-14 EEO Manager positions under Vacancy Announcements No. CASA-10257783-CLN-18 (No. 7783) and CASA-10257917-CLN-18 (No. 7917). 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. 2020000027 2 Vacancy Announcement No. 7783 The Director of the Agency’s Equal Employment/Affirmative Employment Office was the Selecting Official (SO) for Vacancy Announcement No. 7783. The Recommending Official (RO), an EEO Manager lead the rating, ranking, and first round of the interview process. The Human Resource Specialist (HRS) handled the promotion package for the vacancy announcement. HRS assessed the application packets for minimum qualifications and referred the qualified candidates to SO, who convened the rating panel lead by RO. HRS stated that the best qualified candidates were referred for an interview after they were assigned a score based on the crediting plan by the rating panel. Both RO and HRS stated that Complainant was not one of the best qualified candidates, and therefore was not referred for an interview. RO stated Complainant’s packet did not reflect the level of expertise, skills and experience as compared to others who rated higher. In her affidavit, RO listed four factors used to rank candidates in resume review as: skill and experience applying EEO law; ability to gather EEO information and provide detailed reports; establishing and maintaining professional relationships with senior executives, staff and external stakeholders; and, the ability to lead program initiatives related to EEO. During the initial rating review, RO and HRS stated the applicant who was selected for the position (Selectee), received a rating of 19 out of 20. HRS stated Complainant received a 12.5 and RO stated Complainant received a 13. RO explained the applicants with the top five highest scores served as VISN Leads and engaged in national level workgroups and projects. Among other things, Complainant contended that he was a qualified candidate for the position and that his resume demonstrated all the factors described by RO. Complainant argued SO knew he had more experience than any other candidate, which is why SO created an “after the fact” subjective criteria to rate the candidates. Both SO and RO stated that years of experience and performance ratings were not calculated into the rating scores of any of the candidates. In her affidavit, SO stated the Selectee demonstrated she met the two criteria of Results Driven and Leading Change. SO noted that at her position at another agency, the Selectee developed the first internal complaint process, and at the Agency, developed a tracking tool for sexual harassment complainants. Further, the Selectee demonstrated the ability to create action plans and provided EEO assessment and improvements at Agency facilities. SO added that the Selectee had 26 years of relevant experience including as a specialist, investigator, reasonable accommodation coordinator, EEO manager, and Director of Diversity. Vacancy Announcement No. 7917 SO and HRS testified that the vacancy was cancelled because the vacancy was based on the incumbent’s deployment for two years. However, since the deployment was cancelled and the employee stayed in the position, there was no vacancy to be filled and the position was cancelled. Prior to the vacancy being cancelled, Complainant received an email he had been referred for the next step in the selection process. 2020000027 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 EEOC 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 FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant argues, among other things, that the Agency did not recognize and award points for expertise, skills, and experience that were listed on his resume and met the criteria identified by RO. He contends the Agency never provided the detailed scoring of his or other applications by the rating panel, which is further evidence that his low score was arbitrary to exclude him from job competition because of the Agency’s discriminatory animus. Accordingly, Complainant requests that the Commission reverse the final decision. The Agency responds there is no documentary evidence to support Complainant’s contention that he received a low score as a result of discriminatory animus, and that Complainant has not shown he is more qualified than Selectee. The Agency argues the Commission should affirm the Agency’s finding of no discrimination. ANALYSIS AND FINDINGS 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”). To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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. Corp. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. 248, 256 (1981). 2020000027 4 As an initial matter, we note that 29 C.F.R. § 1614.108(b) requires, inter alia, that the agency develop an impartial and appropriate factual record upon which to make findings on the claims raised in the complaint. One purpose of an investigation is to gather facts upon which a reasonable fact finder may draw conclusions as to whether a violation of the discrimination statutes has occurred. Id.; EEO MD-110, at Chap. 6, § IV.B. An investigation must include “a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the Complainant's group as compared with the treatment of similarly situated employees . . . and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant.” Id. at § IV.C. Also, an investigator must identify and obtain “all relevant evidence from all sources regardless of how it may affect the outcome.” Id. at § VI.D. Upon review, the Commission finds that the investigation was inadequate and that the record lacks the thoroughness required for the fact finder to address the ultimate issue of whether discrimination occurred. Specifically, we note that the record contains inadequate documentary evidence to allow us to determine whether the Agency's legitimate, nondiscriminatory reason is pretextual. While the Agency's burden of production is not onerous, it must provide a specific, clear, legitimate, and individualized explanation that provides an opportunity for Complainant to satisfy his ultimate burden of proof of pretext. Lorenzo v. Dep't of Def., EEOC Request No. 05950931 (Nov. 6, 1997). We find that it has not done so here. Here, the Agency did not submit applications and all documents submitted for the position in question for any applicant, rating sheets documenting eligibility for each applicant, or any associated notes/comments regarding the applicants. RO included in her investigative affidavit a table that lists 14 Applicant Packet Scores, and the terms “Selectee” next to the highest score of 19, and “Complainant” next to the fourth lowest score of 13. However, the Agency did not submit any scoring grid or rating charts that were used to establish these scores. Nor did the Agency submit the overall scoring grid from the interviews for the top candidates that RO provided to the SO. Additionally, the investigator failed to interview or obtain an affidavit from the only other person both RO and SO identified was on the rating panel- a VISN 5 Lead EEO Manager. SO identified a VISN 22 Lead EEO Manager who submitted an affidavit as part of the investigation, however, he could not remember anything about the rating panel or Complainant’s application. Therefore, Complainant did not have a full opportunity to demonstrate that the Agency's legitimate, nondiscriminatory reason is a pretext for discrimination. Accordingly, we conclude that the present record lacks necessary information and REMAND this claim to the Agency to conduct a supplemental investigation. Vacancy Announcement No. 7917 We find, however, that the record for Vacancy Announcement No. 7917 was sufficiently developed. As explained above, the Agency articulated legitimate, nondiscriminatory reasons for its actions in claim (2). 2020000027 5 The record reveals that the vacancy announcement at issue was cancelled after the incumbent’s deployment was cancelled which resulted in the position not needing to be filled. As a result, no interviews were conducted, and no actual selection was ever made. Complainant failed to show that these reasons were pretextual. Accordingly, we find that Complainant was not subjected to discrimination as to claim (2). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM in part, and VACATE in part, the Agency's final decision and REMAND this matter to the Agency for a supplemental investigation as ordered below. ORDER Within 90 calendar days of date this decision is issued, the Agency shall take the following action: 1. Conduct and complete a supplemental investigation consistent with the requirements of 29 C.F.R. § 1614.108(b), in EEO MD-110, Chapter 6 and consistent with this decision. The supplemental investigation shall include, but is not limited to: an affidavit or other declaration from the official identified as the VISN 5 Lead EEO Manager who was a member of the rating panel regarding the selection process for Vacancy Announcement CASA-10257783-CLN-18 and explaining the rating given to Complainant and applicants referred for interviews. If the identified witness is no longer available, the Agency shall provide an explanation of that availability and obtain information from other Agency personnel who are able to provide relevant evidence. In addition, the Agency shall obtain complete application materials, contemporaneous notes, scoring sheets, or other documents created during the selection process for Vacancy Announcement CASA-10257783-CLN-18. 2. If Complainant identifies a witness who can provide material and relevant evidence and Complainant makes a proffer of the evidence the witness will provide, the investigator shall obtain the witness' statement or testimony. If the investigator decides not to call a witness identified by Complainant, the investigator shall provide an explanation in the record. If the Agency does not provide information or documentation requested by the investigator or an Agency witness, or an alternate where appropriate, the investigator shall include an explanation in the record. 3. The Agency shall provide Complainant the opportunity to provide a rebuttal affidavit once he has received the supplemental investigative report. Complainant shall cooperate, as appropriate, with the Agency in its actions in supplementing the investigation. 2020000027 6 4. In the supplemental investigative report, exhibits should be identified in the bookmark sections of the electronic submissions to the Commission and not only identified as an exhibit with a number. 5. The Agency shall issue a new decision following the completion of the investigation. 6. A copy of the supplemental investigative report and a new final decision, unless the parties have otherwise resolved this matter, must be provided to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 2020000027 7 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. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 2020000027 8 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 April 22, 2021 Date