01a50362
02-09-2005
Richard Bevins v. Department of Veterans Affairs
01A50362
February 9, 2005
.
Richard Bevins,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A50362
Agency No. 2004-0637-2003103655
Hearing No. 140-2004-00159X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant, a Food Service Worker, WG-2, at the agency's Asheville
Medical Center, Food and Nutrition Service in Asheville, North Carolina,
filed a formal EEO complaint on August 6, 2003. Therein, complainant
claimed that the agency discriminated against him in reprisal for
prior EEO activity when:
(1) on June 13, 2003, he was notified of his non-selection for the
position of Cashier, GS-5/6; and
(2) on July 17, 2003, he was notified of his non-selection for the
position of Teller, GS- 4/5.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The agency thereafter filed a Motion to
Dismiss or in the alternative, a Motion for Decision Without a Hearing.
In its motion, the agency argued for the AJ to issue a decision without a
hearing in favor of the agency, finding no discrimination. The agency
further argued that assuming complainant established a prima facie
case of reprisal discrimination, management articulated a legitimate,
non-discriminatory reason which complainant failed to show was pretextual.
Regarding claim (1), the agency found that complainant was identified as
being qualified for the position of Cashier along with other candidates.
The agency found that the selecting official (SO) stated that a panel
was set up to interview candidates. In his affidavit, the SO stated
that the panel looked at all of the candidates' applications; went
through the performance-based interview (PBI) questioning of several
candidates; and made a recommendation to him. The SO further stated that
the panel recommended a female employee because it felt that she was
the best qualified for the subject position, based on her knowledge and
experience. The SO stated that he chose the selectee based on her prior
teller experience and insurance verification experience. Furthermore,
the SO stated that complainant's prior protected activity was not a
factor in his determination to select selectee for the subject position.
The agency noted that in his affidavit, one of the panelists (P1) stated
that the panel agreed that it would interview only two candidates off
the certification list, because these two candidates were already working
as tellers. The P1 further stated �so I decided on this particular one,
the certification which we would start with, and then proceed from there
if we did not feel that we had any viable candidates for the position.�
The P1 stated that the panel recommended the selectee for the subject
position because her �productivity and performance is probably at an
extremely high level, and she has always received the highest here of
performance awards given to employees.� The P1 stated that the selectee
worked at the agency's Centralized Revenue Unit for approximately two
years. The P1 stated that while he was aware of complainant's prior
protected activity, that it was not a factor in the panel's determination
not to interview or recommend him to the SO.
Regarding claim (2), the agency found that all candidates, including
complainant, were interviewed for the position of Teller. The agency
noted that in his affidavit, the SO testified that the panel used
the performance-based interviews, and made a recommendation of three
candidates for the subject position. The SO stated that the panel felt
that complainant did not do well in the interview compared to the other
recommended candidates. Furthermore, the SO stated that complainant's
prior protected activity was not a factor in his determination to select
the three selectees for the subject position.
The agency further noted that in his affidavit, the P1 stated that the
three selectees were chosen because of their education background and
work experience. The P1 further stated that because complainant was not
in the top three, he did not call complainant's supervisor. The P1 stated
that two of the selectees (S1 and S2) possessed �very good knowledge
of the VA computer system, veteran eligibility, veteran entitlement,
some reimbursement.� The P1 further stated that S2 had extensive teller
background, and was familiar with that process. The P1 stated that the
third selectee (S3) was a cleric clerk and had �a very solid foundation�
in the agency's software and computer system of veteran care, veteran
eligibility and entitlement. The P1 stated that complainant did not do
well during the interview; and that he was not comfortable with some of
complainant's answers because it �set off a red flag.� The P1 stated
that complainant mentioned that on many occasions, he �would go above
and beyond his supervisor to kind of get the job done whether it was the
wrong or right thing to do.� Regarding complainant's computer knowledge,
the P1 stated �I don't remember him having much knowledge at all with
computers, with the VA Vista Software.� Regarding complainant's claim
that the panel did not recommend or select him for the subject position
because of his prior protected activity, the P1 stated �absolutely not.�
On September 21, 2004, the AJ found no dispute of material fact,
and proceeded to issue a decision without a hearing, finding
no discrimination. The AJ concluded that complainant failed to
present evidence to support a finding or create an inference that the
agency's articulated reasons for the non-selections are a pretext for
discrimination on the basis of reprisal. The AJ further concluded
that the agency articulated legitimate, non-discriminatory reasons for
its actions. The AJ found that while complainant was qualified, he was
not the best candidate for consideration by the SO. The AJ found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The agency's final order, dated September 30, 2004, implemented the
AJ's decision.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected class.
Accordingly, the agency's final order implementing the AJ's decision
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 9, 2005
__________________
Date