Roman G.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJan 17, 20180120151544 (E.E.O.C. Jan. 17, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roman G.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120151544 Hearing No. 510-2012-00204X Agency No. 200I-0672-2011104647 DECISION On April 2, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 18, 2015, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Credentialing Program Support Specialist within the Caribbean Healthcare System in San Juan, Puerto Rico. On October 6, 2011, Complainant filed an EEO complaint in which he alleged that the Chief of Staff, in his capacity as a selecting official (SO), discriminated against him on the bases of national origin (Hispanic), religion (Baptist), and reprisal (prior protected EEO activity) by not promoting him to a senior-level Program Specialist position on July 13, 2011. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely 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. 0120151544 2 requested a hearing, which the AJ held on December 18 and 19, 2013. The AJ issued a decision on February 4, 2015. 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.2 The SO convened a three-member interview panel for the purpose of interviewing the candidates and making recommendations as to who they believed was best-qualified. The panel asked each candidate ten questions, which represented the ten knowledge, skill, and ability factors that were used as the rating and ranking criteria. Complainant and the Selectee were identified by the panel as the top two highest-scoring candidates based upon the results of the interview process. Complainant received a raw score of 329 and a weighted score of 181 while the Selectee received a raw score of 299 and a weighted score of 164. Investigative Report (IR) 84-85, 147- 168; Hearing Transcript (HT) 143. Both candidates had received overall ratings of outstanding on their most recent performance appraisals prior to the selection. IR 172-85. In deciding between Complainant and the Selectee, the SO evaluated them against five additional criteria, effectively implementing a second phase of the selection process. Those five criteria were: previous year development; office staff interactions; prior supervisor references; teamwork evidence; and service chiefs’ feedback. On these criteria, the SO awarded Complainant a raw score of 11 and a weighted score of 5 while he awarded the Selectee a raw score of 50 and a weighted score of 23. The SO then added the Performance Based Interview weighted scores and the additional weighted scores of the two candidates. As a result of this process, Complainant received a composite score of 186 while the Selectee received a composite score of 187. IR 77, 170-71; HT 67-88, 123-31. On July 8, 2011, the SO chose the selectee. IR 145-46. ANALYSIS AND FINDINGS 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 discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, Section VI, Subsection B. (August 5, 2015). 2 Although the AJ found in the Agency’s favor, she ordered the Agency to award Complainant $2,160 in attorneys’ fees as a sanction for failure to obey one of her orders. That matter is not now before us. 0120151544 3 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). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. 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 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Where reprisal is at issue, Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dept. of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). For purposes of analysis, we will assume that Complainant has established a prima facie case of discrimination and reprisal, and that the SO has articulated a legitimate nondiscriminatory reason for choosing the Selectee over him. Complainant must now show that this reason is pretextual. 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. Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). In nonselection cases, Complainant could demonstrate pretext by showing that his qualifications for the position were plainly superior to those of the Selectee. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov.12, 2015). In attempting to show pretext in a situation involving nonselections, Complainant must bear in mind that when hiring or promoting, agencies have broad discretion to choose among qualified candidates as long as the selection is not based on unlawful considerations. Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120141478 (Jul. 31, 2015). Agencies may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. See Complainant v. Dept. of Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015). They may even preselect a candidate as long as the 0120151544 4 preselection is not premised upon a prohibited basis. See Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015). The use of subjective selection criteria is not, in and of itself, evidence of discriminatory intent. See Complainant v. Social Security Admin., EEOC Appeal No. 0120132398 (Sept. 11, 2015) (use of subjective criteria in making a promotion does not in itself supply an inference of discrimination). The AJ found that Complainant had not established a prima facie case of discrimination based on his national origin or religion. Complainant failed to establish that the SO or the interview panel members were aware of his religion. The AJ also concluded that Complainant and the Selectee were of the same national origin, Hispanic, although Complainant alleged that he believed that he was widely perceived to be Caucasian or non-Puerto Rican due to his appearance and his relative skill at speaking Spanish. However, the AJ found that Complainant had not established that the SO or the interview panel members harbored any beliefs that Complainant was not Hispanic. As to Complainant’s claim of reprisal, the AJ found that Complainant’s prior protected EEO activity occurred in or before September 2009, and involved a previous Chief of Staff. The AJ further found that Complainant’s claimed protected EEO activity from March 2011 involved a matter he raised with the union over reusable medical equipment, and another matter in 2011 involving the proper licensing requirements for physicians. The AJ noted that these matters did not involve any allegations of discrimination or any other protected EEO activity. In finding in the Agency’s favor, the AJ made a number of critical factual findings. First, although Complainant insisted that he was overwhelmingly qualified for the position (HT 238), the AJ found that both Complainant and the Selectee were superbly qualified for the position. Second, according to a Human Resources Management Supervisor (HRMS) familiar with the process, the SO’s utilization of selection criteria in addition to those relied upon by the interview panelists was entirely permissible and within the SO’s discretion. HT 179-183, 185, 189-90. In making these findings, the AJ determined that the SO and the HRMS were highly credible witnesses and accorded their affidavit and hearing testimony great weight. When asked by the EEO investigator and at the hearing why he believed that his nonselection was discriminatory based on his religion and national origin, Complainant replied that he was a Baptist who was not from Puerto Rico while the Selectee was a Catholic who was. IR 69; HT 199, 236, 245, 253, 258. When asked why he believed that his nonselection resulted from his previous EEO activity, Complainant averred that the SO had told one of the panelists that he could not select Complainant because he had gone to the union to report an alleged incident of discrimination involving a female coworker. IR 69. Beyond these assertions, however, Complainant has presented neither testimony, affidavits, declarations, or unsworn statements from witnesses other than himself nor documents that contradict the SO’s explanation for his choice of the Selectee or which call into question the SO’s veracity or credibility. We therefore find no basis upon which to disturb the AJ’s credibility determination regarding testimony. Ultimately, we agree with the AJ that Complainant has not sustained his burden of proof with respect to his claim that his nonselection in July of 2011 was discriminatory. 0120151544 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order implementing the AJ’s finding that Complainant was not discriminated against as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 Agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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). 0120151544 6 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. 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 17, 2018 Date Copy with citationCopy as parenthetical citation