Ronald A. Davies, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 17, 2000
01a04699 (E.E.O.C. Nov. 17, 2000)

01a04699

11-17-2000

Ronald A. Davies, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Ronald A. Davies v. Department of Veterans Affairs

01A04699

November 17, 2000

.

Ronald A. Davies,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A04699

Agency No. 983473

Hearing No. 170-A08110X

DECISION

Ronald A. Davies (complainant) timely initiated an appeal from the

agency's final order concerning his equal employment opportunity (EEO)

complaint of unlawful discrimination in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e

et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant alleges he was discriminated against on the bases of race

(Black) and sex (male) when he was not selected for the positions of

Program Specialist, GS-340-12, pursuant to agency vacancy announcement

no. 69-98 or Program Specialist, GS-301-12, pursuant to agency vacancy

announcement no. 70-98.

For the following reasons, the Commission AFFIRMS the agency's final

order.

The record reveals that complainant, an Automated Data Processing

Applications Coordinator (ADPAC) in the Health Administration Section

of the Resource Management Service at the agency's Philadelphia,

Pennsylvania Medical Center, filed a formal EEO complaint with the

agency on November 2, 1998, alleging that the agency had discriminated

against him as referenced above. 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 AJ issued a

decision without a hearing, finding no discrimination.

The AJ concluded that complainant established a prima facie case of

race and sex discrimination because he applied and was qualified for

the positions in question, but was not selected for either position,

each of which was filled by a white female.

The AJ further concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, the AJ noted

that the selecting official (SO) maintained that complainant demonstrated

a lack of willingness during his interview, as well as by failing

to appear at a previously scheduled interview and failing to submit

�KSAOs�<2> as part of his application. SO noted that the selectees

for both positions provided detailed information about themselves

during the interview and in their applications and that both had good

supervisory skills. SO noted that one of the positions was essentially

an assistant to him and the other was a �business application� position

and stated that positions required occupants who were �self-starters�

and able to work independently. After reviewing the qualifications

of the applicants, including what he learned during the interviews,

SO determined that the selectees were the best qualified applicants.

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. In reaching this conclusion, the AJ found that

complainant neither challenged the qualifications of the applicants

selected nor asserted that his own qualifications so vastly exceeded

those of the selectees as to compel a finding of discrimination. The AJ

noted that complainant did not demonstrate any gender bias on the part

of SO and that even if SO commented that he desired �to help out a young

black brother,� as alleged by complainant, this did not demonstrate an

animus towards complainant's race.

The agency's final order implemented the AJ's decision.

On appeal, complainant contends that the investigation was insufficient

because interviews were conducted over the telephone and the investigator

failed to ask follow-up questions when SO did not provide reasonable

responses. Complainant also contends that the AJ erred in not holding a

hearing, noting that there are numerous facts in dispute. According to

complainant, these disputed facts include, among other things: whether

SO made reasonable attempts to interview complainant, given that he knew

complainant was on vacation; whether SO had pre-selected a candidate and

therefore was not concerned with providing complainant with an opportunity

to interview; whether providing KSAOs is a requirement when applying

for a position; and whether SO interviewed all the candidates in the

same manner.

The agency requests that we affirm its final order.

FINDINGS AND ANALYSIS

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. This regulation is patterned after the summary judgment procedure

set forth in Rule 56 of the Federal Rules of Civil Procedure. The United

States Supreme Court has stated that summary judgment is appropriate

where it has been determined that, given applicable substantive law, no

genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). An issue is "genuine" if the evidence is such

that a reasonable fact-finder could find in favor of the non-moving party.

Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). In the

context of an administrative proceeding under Title VII, summary judgment

is appropriate if, after adequate investigation, complainant has failed to

establish the essential elements of his or her case. Spangle v. Valley

Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988). In determining

whether to grant summary judgment, the AJ's function is not to weigh

the evidence and render a determination as to the truth of the matter,

but only to determine whether there exists a genuine factual dispute.

Anderson, 477 U.S. at 248-49. An AJ's decision on summary judgment is

subject to de novo review by the Commission. See 29 C.F.R. � 1614.405(a);

Equal Employment Opportunity Management Directive for 29 C.F.R. part 1614

(EEO-MD-110), 9-16 (November 9, 1999).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. We note that while

complainant established a prima facie case of race and sex discrimination,

he failed to establish that the agency's explanations were a pretext

to mask unlawful discrimination. Even assuming that the contentions

raised by complainant on appeal are true, e.g., that SO was aware that

complainant was on vacation and that SO pre-selected candidates prior

to speaking with complainant, there is no evidence to indicate that

the selections were based on complainant's race or sex. Complainant

acknowledged that he did not appear for a lunch-time interview and

did not call SO to indicate that he could not make it. Whether or not

complainant had a justification for this behavior, SO's testimony that

this did not reflect well on complainant remains undisputed. Moreover,

while the agency did not dispute the complainant's claim that failure to

provide KSAOs cannot justify a non-selection, it is also undisputed that

KSAOs provide a selecting official with information about a candidate's

abilities, that complainant did not submit such information, and that when

questioned by SO about this, complainant indicated that he believed SO

was not conducting the interview in the best manner. SO testified that

this behavior on complainant's part demonstrated his unwillingness to

cooperate and lack of flexibility, qualities that were in conflict with

the duties of the positions in question, which required �self starting�

and independent work. SO also testified that both selectees were very

well-qualified for the positions and that he believed that they were

the best candidates.

In attempting to establish that SO's explanation regarding his

uncooperative attitude is a pretext for race and sex discrimination,

complainant offered little. He noted that SO usually hired females

and that SO told him that he desired �to help a young black brother.�

However, we agree with the AJ that neither of these allegations, even if

true, establish that race or sex discrimination motivated the selections.

Moreover, complainant failed to establish that his qualifications were

observably superior to those of the selectees. In attempting to do so,

complainant made vague references to his experience and connections with

agency officials, specifically highlighting his computer expertise.

However, the record confirms SO's testimony that both selectees are

well-qualified for the positions and complainant offered nothing to

indicate that he was the observably superior choice.

As a final matter, we note that the AJ failed to address complainant's

claim that the investigation of his complaint was inadequate. See

EEO-MD-110, at 5-25. After a careful review of the record, however, we

find no evidence to support complainant's allegation. There is nothing

forbidding an investigator to do telephonic interviews and a review of the

affidavits submitted in this case reveal that the appropriate questions

were asked. Complainant has not specified any material issues that were

not explored, nor has he established that the investigative process used

affected the outcome of his complaint or was motivated by his race or sex.

Finally, we note that the agency responded to complainant's allegations

of improper processing and added a record of this response to the subject

complaint file, as required by EEO-MD-110, at 5-26 .

We discern no basis to disturb the AJ's decision. Therefore, after a

careful review of the record, including complainant's contentions on

appeal, the agency's response, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the agency's final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

November 17, 2000

__________________

Date

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Knowledge, Skills and Abilities, Employee Supplemental Qualifications

Statement.