Tristan S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 5, 2019

2019002264 (E.E.O.C. Sep. 5, 2019)

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

Tristan S.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 2019002264

Agency No. 200J05562018103885

DECISION

On March 5, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
January 29, 2019, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a retired federal employee.
Before he retired on October 24, 2016, he worked as a Supervisory General Engineer at the
Agency’s Captain James A. Lovell Federal Health Care Center facility in North Chicago,
Illinois.

On June 5, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of age when: (a) in 2015, the former Acting Assistant/Associate Director
for Facility Support Directorate at the VA Medical Center (VAMC) either made himself the
selecting official and/or was involved in determining who would be selected for the Assistant
Department Head in Facility Management; (b) from May 2015 through October 24, 2016, the
former Acting Assistant/Associate Director, the former Executive Assistant to the

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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Director/Strategic Planner, and the Assistant Human Resource Officer, interfered with
Complainant’s previous position as Department Head in Facility Management; (c) in late 2015 to
early 2016, Complainant brought harassment/hostile work environment charges against the
former Acting Assistant/Associate Director; (d) in 2017 and 2018, Complainant was prohibited
from getting various other jobs at eight other VAMCs and various private sector jobs; and (e) on
March 30, 2018, Complainant was not selected for a Supervisory General Engineer position.

The Agency dismissed claims (a) through (d), pursuant to 29 C.F.R. § 1614.105(a) and 29 C.F.R.
§ 1614.107(a)(2), noting that these claims were not brought to an EEO Counselor prior to filing a
complaint and were not like or related to a matter that has been brought to the attention of an
EEO Counselor. The Agency also dismissed these claims pursuant to 29 C.F.R. §
1614.105(a)(1), as they had not been brought to an EEO Counselor with 45 days of the date of
the matter alleged to be discriminatory, or in the case of a personnel action, within 45 days of the
effective date of the action.

The Agency accepted claim (e) and conducted an investigation, which produced the following
pertinent facts:

Complainant applied for a Supervisory General Engineer position, 0801, GS-14, vacancy
announcement number (VAN) CAVE-10107024-18-J8W. On March 30, 2018, he learned that he
was not selected.

Complainant believed he had more supervisory experience and more experience at the Agency
than the selectee. He indicated that he had previously held a Supervisory General Engineer
position and had over 16 years of hospital experience in this grade and series performing the
requirements and full scope of the position, with outstanding performance ratings in the last 3
years. He also reported having over 25 years of experience in the hospital engineering field. He
alleged the selectee had only 2 years of supervisory engineering experience and handled only
about one third of the position’s responsibilities.

The Selecting Official (SO) attested that there were two selection panels, the first of which
reviewed and ranked the applicant pool, narrowing it to three candidates that were referred to the
second panel, which included SO. The second panel interviewed the three referred applicants,
from which the selectee was chosen. Complainant was not interviewed because he was not
selected by the first panel.

SO also submitted a letter indicating that it was her understanding that Complainant had been the
primary subject of Administrative Investigatory Boards (AIB’s) that resulted in his removal from
his position. She came to know this directly when she was included in matters relating to the
construction project with the Office of General Counsel. The Chair of the first panel had
knowledge of this as well and sought guidance from the Chief of Human Resources, who
referred him to the Office of General Counsel’s attorney, who recommended that Complainant
not be interviewed for the position.

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A member of the panel, a Human Resources Officer (HRO), attested that she recommended that
Complainant not be interviewed because, when he had been Chief Engineer at the facility, there
were AIB’s regarding allegations of misconduct against Complainant, which were substantiated
by the investigation.

The Chair of the first panel attested that Complainant was not interviewed due to guidance by the
Agency’s Human Resources and consultations with the Agency’s Legal Counsel. He also
indicated that Complainant also was not referred to the selecting official because his total resume
score was not in the competitive range and he was not among the best qualified.

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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant reiterates his allegations against the Agency. He asserts that the Agency
engaged in discrimination and retaliation and describes a “lack of action” against employees
engaged in other abuses. He also alleges abuse in the investigations relating to contract issues.

In response, the Agency notes that, at the time of the non-selection, Complainant was a retiree
who had reapplied for the same position that he had held in the same facility, from 2005 to 2016.
The Agency describes the selection process and asserts that Agency personnel determined that
Complainant was not among the best qualified for the position based on his resume and past
work history in the same position he previously held. The Agency further asserts that
Complainant has not presented evidence sufficient to establish that the Agency personnel did not
select him because of his age.

ANALYSIS AND FINDINGS

Standard of Review

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

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Dismissed Claims

EEOC Regulation 29 C.F.R. § 1614.105(a) provides that complainants must consult an EEO
Counselor prior to filing a complaint in order to try to informally resolve a matter.

EEO Regulation 29 C.F.R. § 1614.105(a)(1) provides that complaints of discrimination must be
brought to the attention of an EEO Counselor prior to filing a complaint within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.

EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides, in pertinent part, that the Agency shall
dismiss a complaint that fails to comply with the applicable time limits in 29 C.F.R. § 1614.105,
or that raises a matter that has not been brought to the attention of an EEO Counselor and is not
like or related to a matter that has been brought to the attention of a Counselor.

As noted above, in his formal complaint, Complainant alleged that the Agency subjected him to
unlawful discrimination in claims (a) through (e), as described above. A review of the record
shows that, on April 27, 2018, Complainant initially contacted an EEO Counselor, but
Complainant only discussed claim (e). Claims (a) through (d) were not brought to the EEO
Counselor prior to Complainant’s submission of his formal complaint. Additionally, claims (a),
(b), and (c) allegedly occurred in 2015 and/or 2016 – two or three years prior to both
Complainant’s contact with the EEO Counselor and the occurrence of alleged discriminatory
event in claim (e). With respect to claim (d), even though the alleged events occurred between
2017 and 2018, these allegations concern jobs at other facilities and in the private sector. Thus,
we find the allegations in claims (a) through (d) were not brought to the EEO Counselor prior to
Complainant’s filing his formal complaint and are not like or related to claim (e). Claims (a)
through (d) also were not brought to the attention of an EEO Counselor within 45 days of their
alleged occurrence. Thus, we find the Agency’s dismissal of these claims was proper.

Non-selection Claim

Complainant alleged the Agency treated him disparately in not selecting him for a Supervisory
General Engineer position, a position he previously held at the Agency, at the same grade level.
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must
first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802 at n.13;
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs
v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears
the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502 (1993).
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Even if we assume that Complainant established a prima facie case of discrimination with
respect to his claim, his claim ultimately fails, as we find that the Agency articulated legitimate,
non-discriminatory reasons for its actions. The Agency explained that Complainant was not
advanced beyond the first selection panel because his total resume score was not in the
competitive range and he was not among the best qualified. He also was not recommended for an
interview because his work history with the Agency in this position included substantiated
charges of misconduct. In the absence of evidence of a discriminatory motivation, the Agency
generally has discretion to choose among equally qualified candidates. See Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. at 259. In addition, the Agency has the discretion to choose among
applicants who have different but equally desirable qualifications. See Canhan v. Oberlin
College, 666 F.2d 1057, 1061 (6th Cir. 1981). We note that Complainant previously held this
position for a considerable length of time. However, his service during that period of time
includes substantiated charges of misconduct. Therefore, we find that he still has not produced
sufficient evidence to dispute the selectees’ qualifications or establish that he has superior
qualifications to them. See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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.

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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).
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.
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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

September 5, 2019
Date