Ryan C.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 2, 2016

0120142601 (E.E.O.C. Dec. 2, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ryan C.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120142601

Hearing No. 510-2013-00360X

Agency No. 200I-0675-2012104246

DECISION

Complainant filed an appeal from the Agency’s final order dated June 25, 2014, finding no
discrimination with regard to his 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In his complaint filed on August 23, 2012, which was later amended, Complainant alleged
discrimination based on race (African-American) and in reprisal for prior EEO activity when:

(1) On July 31, 2012, he was not selected for the position of Chief of Compensation and
Pension (C and P), Vacancy Announcement Number ORL-11-JV-576588; and

(2) On February 5, 2013, he was not selected for the position of Chief of Integrated Health
Services (IHS), Vacancy Announcement Number ORL-12-MGM-746808.

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.
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The record indicates that at the conclusion of the investigation, Complainant requested a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On
June 5, 2014, the AJ, after a hearing, issued a decision finding no discrimination, which was
implemented by the Agency in its final order. On appeal, Complainant contends that the AJ
improperly found no discrimination concerning his complaint.2

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, § VI.B. (November 9, 1999).

In this case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselections. During the relevant time period at issue, Complainant
was employed as a Staff Physician, GS-15, in the C and P Division of the Orlando Veterans
Administration (VA) Medical Center.

With regard to claim (1), Complainant claimed that he applied for the Chief of C and P in
December, 2011, but was not selected. As the Chief of C and P, the successful candidate
must: be a board certified physician or a board eligible physician in internal medicine or
family practice; demonstrate a commitment to team building and an overall aptitude for
leadership; establish his/her experience in managing medical providers and completing C and P
examinations; and participate in Committees, Peer Reviews, and task groups at the local and
national level.

The AJ noted that a Selecting Official (SO) convened three member panelists to review
applications and interview six qualified candidates, including Complainant. The panelists
created grid scored sheets, gave scores for candidates’ applications and interview responses,
and gave the completed score sheets to the SO. The SO indicated that the top two scored
candidates declined the position and he, thus, selected Selectee A, a Board Certified
Orthopedic Surgeon, who ranked third. Selectee A received 57 points for the application and
157 points for the interview; Complainant received 57.5 points for the application and 142

2 We find that the AJ properly noted that a disparate impact claim was not at issue.
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points for the interview. The AJ stated that both Complainant and Selectee A had many years
of medical experience. However, indicated the AJ, Selectee A possessed over sixteen years of
administrative and management experience in medicine. The AJ also stated that despite
Complainant’s argument, the panelists credibly testified that they properly followed the
selection process.

With regard to claim (2), Complainant claimed that he applied for the Chief of IHS in
September, 2012, but was not selected. As the Chief of IHS, the successful candidate must:
be board certified in either family practice or internal medicine; be responsible for monitoring
program quality establishing and implementing policies and procedures; have a working
knowledge of the laws and regulations of non-VA purchased care to ensure compliance to the
Veterans Health Administration Directives; and have experience in budgeting.

The SO convened three member panelists to interview three qualified candidates, including
Complainant. The panelists asked the candidates the same questions, scored their responses,
and forwarded the rating sheets to the SO. The SO selected Selectee B who received the
highest rank. Specifically, the SO stated that Selectee B served as Acting Chief of IHS for the
past six months at the time of the application. The AJ indicated the SO’s selection of Selectee
B was because of her extensive experience as Chief of Primary Care for two and one half years
which exposed her to budgeting and personnel management issues; and her experience as
Acting Chief of IHS demonstrated a working knowledge of the Agency fee based medical
services regulations and laws. The AJ stated that Complainant acknowledged his lack of
budgeting experience and that he did not possess any actual experience with the Agency fee
based process.

The AJ found and we agree that Complainant failed to show that his qualifications for the
positions were plainly superior to the selectees’ qualifications or the Agency’s actions were
motivated by discrimination. See Wasser v. Department of Labor, EEOC Request No.
05940058 (November 2, 1995). The AJ stated that Complainant failed to show by a
preponderance of the evidence that the Agency’s proffered reasons were pretextual. Upon
review, we find that the AJ’s factual findings of no discriminatory intent are supported by
substantial evidence in the record.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order finding no discrimination is AFFIRMED.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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), 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. The requests 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 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 (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.
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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

December 2, 2016
Date