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

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022003314 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shane L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022003314 Hearing No. 550-2018-00010X Agency No. 200P00102016105100 DECISION On May 31, 2022, 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 May 13, 2022, 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., 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Officer, GS-12 at the Agency’s Veterans Integrated Service Network (VISN) 20 facility in Boise, Idaho. On September 28, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (physical), age (YOB: 1964), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age 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. 2022003314 2 Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when: 1. On March 31, 2016 and April 28, 2016, the Chief, Division II (Chief) misinformed Complainant as to his eligibility to apply for the position of Supervisory Contract Specialist, vacancy announcement #SAOW20-BGP- 16VO1713619, because of his non-competitive appointment status; 2. On June 7, 2016, the Administrative Officer informed Complainant he could not apply for the Supervisory Contract Specialist position because of his merit promotion/non-competitive status; 3. On August 3, 2016, Complainant was not selected for the position of Supervisory Contract Specialist (Supply), vacancy announcement #SAOW20-BGP- 16VO1713619 because of the hiring policies of the Director of Contracting (Director); 4. On September 7, 2016, the Division Chief told Complainant that if it were up to him, he would get rid of anyone over the age of 50 in leadership positions and replace them with 30 to 40 year-olds; 5. On September 16, 2016, Complainant was not selected for the position of Supervisory Contract Specialist (Services), vacancy announcement SAOW20- BGP-16VO1713619 because of the hiring policies of the Director; 6. On December 6, 2016, vacancy announcement SAOW20-17-DJHV01861825, which Complainant was certified in, was delayed and readvertised to allow the current certification to expire in retaliation.2 The Agency accepted Claims 3, 5, and 6 constituted timely raised independently actionable claims, as well as Complainant’s overall harassment claim. The Agency investigated the complaint. The Director stated that the National Contracting Office 20 (NCO 20) revised the hiring process in March 2016, formalizing the new process for consistency and continuity. See Report of Investigation (ROI) at 146. The Director explained that the formalization consisted of a three-step process: 1) records review and scoring via a predetermined spreadsheet (where credit is given for Veteran status), 2) interview questions predetermined and scored on a spreadsheet, and 3) reference check on an applicant’s background. See id. Complainant asserted that he believed the Agency was not properly following merit systems protection principles or the VISN 20 policy for non-competitive appointments for disabled veterans. See ROI at 102-105. The Administrative Officer stated that, when Complainant asked her about it, she told him that NCO 20 is not part of the VISN 20 and that historically, the NCO 20 has only granted non-competitive appointments to GS-09s and below but for manager positions, has required interested employees to apply and interview for any GS-12 or higher positions. See ROI at 183-84. 2 Complainant only alleged reprisal as a basis in claim 6. Claims 3, 5, and 6 were accepted as discrete acts of discrimination as well as part of Complainant’s overall harassment claim. 2022003314 3 Sometime after June 10, 2016, Complainant submitted an application for the Supervisory Contract Specialist position and was placed on the certificate of those eligible, along with 20 other applicants. See ROI at 290-93; 304-309. Complainant was interviewed by a panel of six individuals, including his second-line supervisor, the Chief. See ROI at 164; 320-26. The same questions were asked of each applicant and the answers were assigned a score by each interview and then totaled. See ROI at 318-44. Of those interviewed, Complainant received the fourth- highest score while the Selectee (Selectee 1) received the highest score. See ROI at 317. The interviewing panelists stated that Complainant did not interview as well as the Selectee 1, not being focused and not “demonstrating an organized, well thought out understanding of the supervisory position.” See ROI at 171; 205; 220. Complainant alleges that “all the hiring panel notes were destroyed.” See ROI at 111-12. On or about September 16, 2016, management selected another Selectee (Selectee 2) for the second Supervisory Contract Specialist opening using the same certification list for the original vacancy announcement. See ROI at 156-57. After the interviews, Selectee 2 ranked second on the certification list. See ROI at 157. The Director also explained that Selectee 2 had “extensive contracting background” at the Department of Defense while the Chief stated that Selectee 2 had a “strong background in supervisory [experience] and leadership from the Army Corps of Engineers.” See ROI at 157-58; 174. Complainant further asserted that the vacancy announcement in claim 6 was delayed and re- advertised to allow the current certification to expire in reprisal because he was the next person on the list who would have been eligible for the selection when the position opened up. See ROI at 123-24. The Director explained that the vacancy announcement was reopened because the previous certification was exhausted by not having enough names to perform a competitive hiring process. See ROI at 144. The record also indicates that, contrary to Complainant’s assertion, he was not the next person to be eligible but the second one on the remaining eligible, having been ranked fourth. See ROI at 317. 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. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s April 12, 2022, motion for a decision without a hearing and issued a decision without a hearing on April 27, 2022. The AJ found that Complainant did not submit any evidence to indicate that the Agency’s legitimate, nondiscriminatory reasons were a pretext for discrimination. The AJ therefore concluded that Complainant failed to establish that he was subjected to discrimination as alleged. The Agency subsequently issued a final order adopting the AJ’s finding. 2022003314 4 Complainant appeals, contending that the AJ ignored relevant material facts as to the Agency’s “falsified selection panel notes,” and also argues that another older male disabled veteran was similarly denied promotion.3 Complainant also challenges the adequacy of the investigation by not including an affidavit from the Division Chief and falsely claiming that he had retired. Finally, Complainant argues that the Agency’s stated nondiscriminatory reasons are all false and should not have been accepted. The Agency did not file a brief in response. ANALYSIS AND FINDINGS 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 Chapter 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”). Summary Judgment 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. 3 To the extent Complainant bases his argument based on the situation of another male disabled veteran, we note that his co-worker’s situation is unrelated to Complainant’s complaint and is not evidence of discrimination against Complainant. 2022003314 5 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, Complainant argues that the record was incomplete and the AJ did not adequately consider all the material facts in the record, specifically arguing that the notes from the interviewing panel were either falsified or destroyed and that the record did not obtain an affidavit from the Division Chief who allegedly made the statement about wishing to get rid of anyone over the age of 50 in leadership positions. We reject Complainant’s arguments. To the extent Complainant challenges the adequacy of the investigation because the investigator did not interview the Division Chief, we find that the investigator made a good faith effort to do so and the failure to obtain his affidavit does not indicate that the investigation was inadequate. The record contains a memorandum from the Investigator detailing her attempts to contact the Division Chief, noting that he had left his employment with the Agency, and the investigator’s numerous attempts to contact the Division Chief using his personal email address received no response. See ROI at 260. We find that the Agency’s investigation was sufficient to allow us to determine whether discrimination had occurred. See Emerson P. v. Dep’t of Health and Human Srvcs., EEOC Appeal No. 0120180491 (Sept. 19, 2019). As to Complainant’s other assertions of a factual dispute because the management officials were being untruthful, we note that Complainant did not provide evidence to support his assertions. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 0120181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). We therefore find that the AJ’s issuance of a decision without a hearing was proper. Disparate Treatment Under the established McDonnell Douglas standard, a complainant initially must establish a prima facie case of discrimination by presenting facts which, 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 Affs. v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 253. 2022003314 6 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). We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding the non-selections at issue in Claims 3 and 5, the Director stated that he was the Selecting Official for the vacancy announcements but that he was not part of the hiring process reviewing records and performing the interviews, only making his decisions based on the results compiled by the selections committee chair. See ROI at 146-49. He stated that the process followed the official NCO 20 hiring process formalized in March 2016. See ROI at 150. The Chief stated that Complainant did not answer the interview questions succinctly and that Selectee 1 had received good feedback from her supervisor as to Selectee 1’s handling of very high- profile VISN-wide contracts and had done rotations among several branches of NCO 20 giving her leadership and management experience. See ROI at 169-71. Other interview panel members agreed that Complainant did not interview as well as Selectee 1, with one noting that Complainant’s responses to the questions “did not demonstrate an organized, well thought out understanding of the responsibilities of the supervisory position,” while another panel member stated that Complainant “seemed combative and did not give direct answers to several of the interview questions.” See ROI at 205; 220-21. The record also contains the interview panel notes for Complainant and both Selectees.4 See ROI at 318-344. Finally, with respect to Claim 6, the Director explained that active certifications are authorized for usage for up to six months and further stated that he made the decision to cancel the earlier vacancy announcement and re- advertised the announcement because the previous list was exhausted by not having enough names to perform a competitive hiring process. See ROI at 144; 157-59. The Director clarified that it appeared Complainant was referring to VISN rules and guidance for active certifications but that the vacancy was cancelled under NCO 20 hiring processes, which do not fall under VISN. See ROI at 158-59. The Administrative Officer confirmed that even if the vacancy announcement had not been readvertised, Complainant would not have been the next person to be selected from the initial announcement’s certification list. See ROI at 194. 4 To the extent Complainant asserts that the interview panel notes have somehow been falsified, there is no evidence in the record to support his assertions. 2022003314 7 We further find that Complainant did not establish that any of the Agency’s reasons are a pretext for discrimination. We note that there is no evidence in the record to support Complainant’s assertions of discriminatory animus. Complainant’s argument is largely limited to contending that he was more qualified for the positions than both the Selectees and disputing the interviewing panelists’ assertions that he did not interview well. However, Complainant cannot demonstrate pretext based on his subjective assessment of his own qualifications or his interview. See Palmer N. v. Dep’t of Defense, EEOC Appeal No. 0120140070 (March 18, 2016). The Commission has repeatedly held that agencies have broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation, which is not present here.5 See Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120130083 (Aug. 8, 2014). It is well established that mere disagreement with an Agency’s actions is not sufficient to establish pretext. The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. See Ambrose M. v. Dep’t of the Air Force, EEOC Appeal No. 0120180225 (June 11, 2019). Moreover, it is well settled that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. See Harris K. v. Dep’t of Health and Human Srvcs., EEOC Appeal No. 2019004756 (June 30, 2020). Hostile Work Environment To establish a claim of hostile work environment harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). As an initial matter, we note that because the investigator was unable to reach the Division Chief, there is no corroborating evidence that the Division Chief in fact made the alleged comment about wishing to get rid of all those over the age of 50 in management positions as Complainant stated that there were no witnesses to the incident. See ROI at 121. Even assuming the comment was made, we note that while concerning, it is a single comment and generally isolated incidents and stray comments do not rise to the level of a hostile work environment. See Tessa L. v. Dep’t of the Interior, EEOC Appeal No. 0120141159 (July 25, 2017). 5 To the extent Complainant seeks to challenge the Agency’s actions in hiring and advancement as violations of merit systems principles and veteran preference requirements, the Commission does not have jurisdiction over such claims. See 29 C.F.R. § 1614.103(a); see also Montgomery- Resendiz v. Dep’t of Health and Human Srvcs., EEOC Appeal No. 01991339 (Jan. 31, 2001). 2022003314 8 While it is clear that Complainant feels aggrieved, the Commission has long held that Title VII is not a civility code and not every unpleasant or undesirable act which occurs in the workplace constitutes an EEO violation. See Aron J. v. U.S. Postal Serv., EEOC Appeal No. 0120180078 (April 12, 2019); Shealey v. Equal Emp’t Opportunity Comm’n, EEOC Appeal No. 0120070356 (Apr. 18, 2011). Finally, we note that a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 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 finding that Complainant did not establish that he was subjected to discrimination as alleged. 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. 2022003314 9 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. 2022003314 10 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 January 26, 2023 Date