0120090610
05-22-2009
Robert L. Ly, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Robert L. Ly,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090610
Agency Nos. 200P-0593-2006101250
200P-0005-2007103952
Hearing No. 480-2006-00432X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 17, 2008 final order concerning the two
captioned EEO complaints that claimed 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.
During the period at issue, complainant was employed as an Information
Technology (IT) Specialist, GS-12, at the agency's IT Department, VA
Southern Nevada Healthcare System in Las Vegas, Nevada. Complainant
filed the two captioned formal complaints on March 30, 2006 and October
12, 2007, respectively. Therein, complainant alleged that the agency
discriminated against him on the bases of race (Asian/Pacific Islander),
national origin (Vietnamese), and sex (male) when:
1. on January 13, 2006, he was not selected for the position of
Supervisory Information Technology Specialist, GS-2210-13, under Vacancy
Announcement No. 06-016 (Agency No. 200P-0593-2006101250, hereinafter
referred as "Complaint 1"); and
2. on August 20, 2007, he was not selected for the position
of Information Technology Specialist (Network Services/System
Administrator), GS-12, under Vacancy Announcement No. 593-07-094 (Agency
No. 200P-0005-2007103952, herein referred as "Complaint 2").
The agency consolidated Complaints 1 and 2 for investigation. Following
the investigation of Complaints 1 and 2, complainant requested a hearing
before an EEOC Administrative Judge (AJ).
Complaint 1
A hearing was held before an EEOC Administrative Judge (AJ) concerning
Complaint 1. After considering the testimony of the witnesses, the
AJ determined that complainant did not show by a preponderance of
the evidence that he was discriminated against on the bases of race,
national origin, and sex.
As an initial matter, the Commission notes that one witness testified
by telephone at the hearing held by the AJ. The Commission has held
that testimony may not be taken by telephone in the absence of exigent
circumstances, unless at the joint request of the parties and provided
that specified conditions have been met. See Louthen v. United States
Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).1 However,
because the facts of this case pre-date Louthen, the Commission will
assess the propriety of taking the testimony of some witnesses by
telephone, considering the totality of circumstances. Here, it is
unclear whether exigent circumstances existed. However, it is clear
that there were no issues of witness credibility that might have been
impacted by the taking of this testimony by telephone, and neither party
objected to the manner in which those witnesses testified. Under these
circumstances, even if it is assumed that the AJ abused his discretion
by taking testimony by telephone, the Commission finds that his action
would have constituted harmless error.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if supported by substantial evidence in the
record. Substantial evidence is defined as "such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not a
discriminatory intent existed is a factual finding. See Pullman-Standard
v. Swint, 456 U.S. 273, 293 (1982).
On appeal, complainant has not provided any persuasive argument regarding
the propriety of the AJ's finding of no discrimination. The Commission
determines that the AJ made a thorough and detailed analysis in his
final decision. Therein, the AJ found that complainant did not establish
a prima facie case with respect to the raised bases. Moreover, the
AJ found that the agency articulated legitimate, non-discriminatory
reasons for complainant's non-selection. Specifically, the AJ found
that the selecting official (SO) chose the selectee for the position
of Supervisory Information Technology Specialist, GS-2210-13, because
she was the most qualified. The AJ noted that the SO implemented a
selection panel of three panelists including himself. SO testified
that the committee agreed to do a performance-based interview (PBI)
with two candidates, including complainant. The SO stated that he and
the other two panelists each individually rated the two candidates'
responses and none of them knew how the panel rated them until after
both interviewed were fully completed. Specifically, SO stated that the
panel asked questions "from the question pool to access the applicant's
past experience and what's their reaction under different scenarios.
And they can come up with the best qualified answers. And we use that
to score their experience and their past experience and add it together
to make the selection." SO further stated that the selectee "had the
highest score on most of their categories. So that's how we made the
selection."
Regarding complainant's contention that he had more IT experience
than the selectee, SO stated that the selectee had more experience
supervising other individuals compared to complainant's technical
experience. SO stated that the subject position "is a supervisory
position. So the experience on leadership is more important to me."
Regarding complainant's contention that the selectee was pre-selected,
the AJ found no supporting evidence in the record. Moreover, assuming
that pre-selection occurred, the AJ determined that the agency's
explanation for its selection decision precludes any conclusion that
the pre-selection, was predicated upon any discriminatory motive.
One of the other two panelists (P1) stated that the each panelist "scored
the candidate separately without talking to each other about the score.
We made sure we did that so that way . . . we don't bias each other's
opinions about the candidates. Then. . . after both candidates were
completed, . . . we tallied up the scores on an Excel spreadsheet..."
P1 stated that the panel recommended that the selectee be selected for
the subject position because she "was much more articulate and detailed
in her response to the questions. And after we discussed it with other
panel members, her answers were just better." Finally, the AJ did not
find that the agency reason was a pretext for discrimination.
Therefore, after a review of the record in its entirety, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's final order concerning Complaint 1 because the Administrative
Judge's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.
Complaint 2
On October 28, 2008, the AJ issued a decision by summary judgment in
favor of the agency concerning Complaint 2. The agency fully implemented
the AJ's decision in its final order. Specifically, the AJ found that
complainant established a prima facie case of race, national origin and
sex discrimination. The AJ further found that management articulated
legitimate, nondiscriminatory reasons for complainant's non-selection
which complainant did not prove were pretext for discrimination.
SO stated that he was the concurring official to select selectee for
the position of IT Specialist (Network Services/System Administrator),
GS-12. Specifically, SO stated that because the subject position was
under the Lead Network Administrator's leadership, he delegated her
the responsibility to review the two candidates, including complainant,
for the subject position and to make a recommendation to him. SO stated
that he concurred with the Lead Network Administrator's recommendation,
determining that while both candidates were qualified and "pretty close,"
the selectee's extensive security experience made her the overall best
candidate for the subject position. SO stated that complainant's race,
national origin and sex were not factors in his determination to select
the selectee for the subject position. Specifically, SO stated "myself,
you know, [am of] Asian decent and [the named Lead Network Administrator]
is also Asian decent. So we know what is the feeling . . . being
. . . discriminated. So we are very sensitive to the issue. That is
why we been very careful when we select any candidates, we always just
consider their ability, not even think about their race, their gender
or their, you know anything else."
The Lead Network Administrator stated that she was the recommending
official (RO) for the position of IT Specialist (Network Services/Systems
Administrator), GS-12. RO further stated that she sought a candidate
with knowledge and experience with CISCO routers and switches; basic
knowledge of wide networks; and knowledge of servers and security.
RO stated that both complainant and selectee were "equally qualified."
RO stated, however, that her section "kind of lacks the security because
of the new VA standards for security as far as patient security for
patient information." RO stated that she recommended the selectee for
the subject position because she "had security background, and was in a
position of security, that would have enhanced our section for this new
CNA that was coming up." Furthermore, RO stated that complainant's race,
national origin and sex were not factors in her recommendation that the
selectee be selected for the subject position.
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, 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.
Complainant has offered no persuasive arguments on appeal regarding the
AJ's decision to issue a decision without a hearing, or regarding the
AJ's findings on the merits. Therefore, after a review of the record
in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final order concerning Complaint 2,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that unlawful discrimination occurred.
In summary, the AJ's finding of no discrimination concerning Complaints
1 and 2 is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 22, 2009
__________________
Date
1 In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent.
When assessing prior instances of telephonic testimony, the Commission
will determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further,
where telephonic testimony is improperly taken, the Commission will
scrutinize the evidence of record to determine whether the error was
harmless, as is found in this case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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