0120093131
11-09-2009
Winston Williams, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Winston Williams,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093131
Agency No. 200400082007103190
Hearing No. 570-2008-00373X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 23, 2009 final order concerning an equal
employment opportunity (EEO) complaint claiming 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On July 31, 2007, complainant, a former agency employee and job
applicant, filed the instant formal complaint. Therein, complainant
claimed that the agency discriminated against him on the bases of race
(Sri Lankan) and age (over 40) when:
on June 27, 2007, he learned that he was not selected for the position
of Electrical Engineer, 0850-14, advertised under Vacancy Announcement
No. PG 134870DD.
Following the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). On June 3, 2009, the AJ issued a
decision by summary judgment in favor of the agency. On June 23, 2009,
the agency fully implemented the AJ's decision in its final order.
Without addressing the prima facie analysis, the AJ found that the
agency articulated legitimate, nondiscriminatory reasons for its actions
which complainant failed to show were a pretext. The AJ noted that
the selecting official (SO), stated that five candidates applied for
the position of Electrical Engineer. SO stated that three candidates,
including complainant, were referred to him
for consideration. SO further stated that he established a selection
panel that included himself and two Senior Electronic Engineers.
SO stated that he sought candidates with "professional engineers'
license and membership in professional organizations." SO stated that
he reviewed the candidates' work experience for technical knowledge
organizational skills and experience on large scale projects. SO stated
that he instructed the panel "to verify the candidates' electrical
engineering, practical knowledge and experience as it relates to the
work associated in the CSS [Consulting Support Service]." After the
panel shared its recommendations with him, SO made a determination to
interview only one candidate for the subject position. SO stated that
he chose the selectee for the subject position because of superior
qualifications. Specifically, SO stated that the selectee "had solid
23 years of electrical engineering experience when he applied for the VA
Job, and experience in medical facilities." SO also stated that the
selectee was a professional engineer in the metropolitan Washington DC
area and has certifications in RCDD (Telecommunications Infrastructure)
and ICS (Electrical Plan Reviewer and Energy Code Inspector); and that
he had extensive experience in government mission critical facilities.
SO stated that he did not select complainant for the subject position
because complainant "lacks the leadership characteristics necessary
to effectively represent CSS to our clients." SO further stated that
complainant presented no experience in dealing with emergency requests
for technical help on natural or man-made disasters and "failed to
demonstrate a current and superior expertise in matters related to code
and construction issues in a healthcare environment." SO stated that
complainant also failed "to present evidence that demonstrates previous
exceptional performance. His previous tour of duty with VA gave him
ample opportunity to achieve such recognition form the same types of
clients that he now wishes to serve. No recognition was presented."
Furthermore, SO stated that complainant's race and age were not factors
in his determination to select selectee for the subject position.
One of the two Senior Electrical Engineers (E1) stated that he reviewed
the resumes of the top three referred candidates for the subject
position and "compared their technical knowledge, organizational skills
and experiences on large-scale project. I gave my opinion to [SO].
At the end, [SO] made decision on who would be called for the interview."
E1 stated that he felt that the selectee was best qualified because he
"holds professional engineer licenses for DC, [Maryland, and Virginia].
He is a member of IEEE - Power Section, Industrial Engineering Application
Section and a member of International Telecommunication Industrials
Society (BICSI). In addition, he is International Building Codes (IBC)
certified Electrical Plan Examiner, IBC certified Commercial Energy
Inspector, and BICSI certified Communication Distribution Designer
(RCDD)." P1 further stated that the selectee "has many years of
design experience for the medium voltage of many large-scale projects.
He is specializing in the design of emergency power for many mission
critical facilities." E1 stated that the agency's current projects
are mostly large-scale projects involving energy centers and mission
critical facilities. P1 stated "therefore, I believe our selectee's
experience is a perfect match to the need of our office."
E1 stated that while reviewing complainant's resume, he noted that
complainant "did not mention that he had any membership with any
professional organizations. It is my understanding that his work
experience at his current position was limited to small in-house design
projects and projects review. He had not involved with any large-scale
medical center projects since he left Department of Veterans Affairs.
His current experience has little value to us judging the challenges
that we are facing in our office."
On appeal, complainant argues that the AJ erred in finding no
discrimination. Complainant argues, for instance that the AJ's final
decision "was only based on case studies presented by the Agency to meet
its own objectives while no considerations at all given to evidences
identified by the complainant on Agency's deceptions and wrong doings
does not reflect a just decision made on the basis of equal opportunity
to all citizens."
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. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. 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. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Complainant has offered no persuasive arguments on appeal regarding the
AJ's decision to issue a decision without a hearing, or regarding the
AJ's findings on the merits. Therefore, after a review of the record
in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final order, because the Administrative
Judge's issuance of a decision without a hearing was appropriate and a
preponderance of the record evidence does not establish that unlawful
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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 9, 2009
__________________
Date
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0120093131
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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