Thurman L., Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 25, 2016

0120143102 (E.E.O.C. Feb. 25, 2016)

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

Thurman L.,
Complainant,

v.

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

Appeal No. 0120143102

Hearing No. 520-2014-00343X

Agency No. 200H-0526-2013102236

DECISION

Complainant filed an appeal concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. Our review is de novo. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Clinical Social
Worker at the Agency’s facility in Montrose, New York.

On June 13, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his race (African-American), sex (male), religion
(Muslim), and in reprisal for his prior protected EEO activity under Title VII when on March 4,
2013, he was not selected for the position of GS-01, 8512 Supervisory Social Worker
(Readjustment Counseling) under Vacancy Announcement #795618.

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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing
and issued a decision without a hearing on July 28, 2014.

The AJ found that no discrimination occurred. The AJ stated that Complainant did not receive
an interview and he asserted that he did not know if the selectee (Caucasian, male, religion and
prior EEO activity unknown) was a more qualified candidate. The AJ noted that the selectee was
working at another Agency Center, and was a combat veteran and a licensed clinical social
worker. The AJ stated that no interviews were conducted as the selecting official was informed
by the Human Resources Department that a disabled or combat veteran can be selected without
interviewing the other candidates. According to the AJ, the selectee was a qualified mental
health professional who received recommendations from his team leader and military
commander, and was selected directly without an interview.

The AJ found that assuming arguendo Complainant set forth a prima facie case of discrimination
under the alleged bases, the Agency articulated a legitimate, nondiscriminatory reason for not
selecting Complainant. The AJ observed that the selectee had a veteran’s preference over
Complainant. The AJ stated that as a combat veteran, the selectee had priority over non-combat
or non-disabled veterans and non-veterans, and could be chosen directly without the selecting
official needing to interview any applicants. The AJ found that Complainant produced no
evidence to show this was untrue or pretext.

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.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

Disparate Treatment/Reprisal

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). Complainant must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. 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,

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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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. We shall assume arguendo that Complainant established a prima
facie case of discrimination under the alleged bases. The Agency stated that the selectee had
approached his supervisor and expressed an interest in the position at issue. The selectee was
employed by the Agency’s counseling service, was a combat veteran in Iraq and was a licensed
clinical social worker. The Agency explained that the Human Resources Department advised the
selecting official that he could make a direct appointment without interviewing any other
applicants. The Agency stated that the selectee was chosen since he was a qualified mental
health professional who received recommendations from his team leader and military
commanders. The Agency noted that the selecting official did not become aware of
Complainant’s race, sex, religion and prior EEO activity until during the investigation. We find
that the Agency articulated legitimate, nondiscriminatory reasons for its selection.

Complainant maintains that the Agency repeatedly passes him over for selection in favor of
individuals outside his protected groups. Complainant argues that the Agency did not want to
interview him for the position because he had received a cash settlement from a prior EEO
complaint. Complainant further argues that his work experience and academic credentials made
him sufficiently qualified for the position. We recognize that Complainant had significant
attributes that usually would warrant consideration. However, we find that his arguments are not
persuasive in light of the strong credentials possessed by the selectee. The selectee was a combat
veteran and a licensed clinical social worker with strong recommendations who could be selected
without interviewing other candidates. We find that these attributes negate any likelihood of
discriminatory motivation being a factor in the selection process.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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:

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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, 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 (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

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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

February 25, 2016
Date