[Redacted], Renato K., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 9, 2022Appeal No. 2021000561 (E.E.O.C. Feb. 9, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Renato K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000561 Hearing No. 480-2015-00194X Agency No. 200P-0377-2014101951 DECISION On October 28, 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 June 10, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Ratings Veterans Service Representative, GS-12, at the Agency’s Regional Office in San Diego, California. On March 31, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African American) when: 1. On January 29, 2014, Complainant was not selected for the Decision Review Officer position advertised under Vacancy Announcement No. 377-14-03-DG-1003436. 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. 2021000561 2 2. On April 25, 2014, Complainant was not selected for the Decision Review Officer (Rating/Appeals Quality Review Specialist) position advertised under Vacancy Announcement No. 377-14-12-DG-894-859. The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. Complainant applied for the Decision Review Officer (DRO1) position advertised under Vacancy Announcement No. 377-14-03-DG-1003436. Three Agency officials were appointed to a panel to review application packets for the vacancy and conduct interviews. Each panelist reviewed and scored the applications independently without any discussion between panel members. A matrix was prepared, and an average total score was calculated for each applicant. The cut-off score that was needed to secure an interview was 30, and Complainant received a score of 19. After the interviews the panelist forwarded their scores and recommendations to the Veterans Service Center Manager (Selecting Official 1). Selecting Official 1 stated that he selected the selectee (Selectee 1), because Selectee 1 had the highest average score. Selecting Official 1 testified that race was not a factor in the selection process for the DRO1 position. Complainant applied for the Decision Review Officer (Rating/Appeals Quality Review Specialist) (DRO2) position advertised under Vacancy Announcement No. 377-14-12-DG-894- 859. Selecting Official 1 testified that Human Resources forwarded a list of the best qualified candidates to a union panel for an initial screening, because the Agency received 9 or more applicants. After the union screened the applicants their applications were forwarded to a panel to review application packets for the vacancy and conduct interviews. There were three Agency officials on the panel. Each panelist reviewed and scored the applications independently without any discussion between panel members. Complainant was invited for an interview. Complainant scored 14/25 on his interview. He had an overall score of 55.33 on his interview, application and writing sample, but was not selected for the position. When Selecting Official 1 was out of the office, the Acting Veterans Service Center Manager (Selecting Official 2) chose the first candidate for the DRO2 position. Selecting Official 2 chose Selectee 2 because Selectee 2 had the highest overall score, which was 70. Upon returning to the office, Selecting Official 1 chose the second candidate for the DRO2 position. Selecting Official 1 testified that he chose Selectee 3, because Selectee 3 scored 66.33, the second highest score. Complainant testified that he believed that he was a better candidate for the DRO1 and DRO2 positions than the selectees because he had more experience than them. Complainant described that he had worked as a Rating Veterans Service Specialist longer than Selectee 1, was handpicked to be the Veterans Benefit Management System super user and train others on the system, was instrumental in training and signing at least 6 apprentices, had completed 6 sigma certification courses, and completed a green belt certification. Complainant also stated that his quality and accuracy were over 99%, and his production was at 116%. 2021000561 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. When Complainant did not object, the AJ assigned to the case granted the Agency’s October 4, 2015, motion for a decision without a hearing and issued a decision without a hearing on September 16, 2020. 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. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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, while Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in his favor. Disparate Treatment Claim A claim of disparate treatment is examined under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. 2021000561 4 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, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. 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 its actions, 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated a legitimate, nondiscriminatory reason for its action. Selecting Official 1 testified that Complainant was not selected for the DRO1 position or the DRO2 position because his scores were lower than the selectees. The overall application scores were compiled by panelists, who reviewed and scored the applicants independently. The cut-off score that was needed to secure an interview for the DRO1 position was 30, and Complainant received a score of 19 which was well below the cut off score. Even though Complainant interviewed for the DRO2 position, the panelists gave him an overall score of 55.33 for his interview, application and writing sample. Complainant’s overall score of 55.33 was lower than Selectee 2, who had the highest overall score of 70, and Selectee 3 who scored the second highest score of 66.33. The Agency’s articulated reason is a legitimate reason not to hire Complainant and it is unrelated to his race. Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reason was a pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare- Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007). When the issue is non-selection, evidence of pretext can take the form of a showing that Complainant's qualifications were plainly superior to those of the selectee. Hung P. v. Dep't of Veteran Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). The Supreme Court has addressed the question of comparative qualifications as evidence of pretext in a non-selection case and held that the differences in qualifications must be “significant.†See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). 2021000561 5 In an effort to show pretext, Complainant asserted that the had superior work experience, including that he had worked as a Rating Veterans Service Specialist longer than Selectee 1, was handpicked to be the Veterans Benefit Management System super user and train others on the system, was instrumental in training and co-signing at least 6 apprentices, had completed 6 sigma certification courses, and completed a green belt certification. A review of Selectee 1’s resume shows that he worked as a Rating Veterans Service Specialist for 5 years, trained others on the appeals process, mentored new apprentices and co-signed their reviews, and checked his peers work when they required special review. A review of Selectee 2’s resume shows that he has a law degree, worked as a Rating Veterans Service Specialist for 3 years, served as a pre- decisional hearing officer for the Veterans Service Center, taught new employees pre-challenge courses and co-signed their reviews. While Complainant may disagree with the Agency’s selection decisions, the record does not establish that his qualifications were plainly superior. Absent evidence of discriminatory animus, the Commission will not second guess an Agency's business decisions. Texas v. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981). We find that Complainant has failed to show that the Agency’s explanations were a pretext masking discrimination. 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). 2021000561 6 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. 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. 2021000561 7 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 February 9, 2022 Date Copy with citationCopy as parenthetical citation