0120111136
10-26-2012
Clyde Brown, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Clyde Brown,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111136
Hearing No. 430-2009-00120X
Agency No. 2004-0652-2008102904
DECISION
On December 14, 2010, Complainant filed an appeal from the Agency's October 13, 2010, final order 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. 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 Medical Supply Technician, GS-5, in the Supply, Processing, and Distribution (SPD) Section of the Material Management Service at the Agency's Veterans Affairs Medical Center in Richmond, Virginia. The Agency posted an opening for the position of Medical Supply Technician (Equipment Servicer), GS-6, under Vacancy Announcement Number 07-194, from July 23, 2007, through August 10, 2007. Complainant timely applied for the position and was one of five candidates found qualified. Complainant and the other candidates were interviewed for the position. On April 10, 2008, Complainant was notified that he was not selected for the GS-6 position.
Complainant filed an EEO complaint dated July 11, 2008, alleging that the Agency discriminated against him on the basis of age (56) when: Complainant was not selected for the Medical Supply Technician (Equipment Servicer), GS-622-6 position.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing. The AJ issued a decision without a hearing on September 29, 2010.
In her decision, the AJ stated that assuming Complainant established a prima facie case of discrimination, the Agency's legitimate, non-discriminatory reasons for Complainant's non-selection were persuasive. The AJ noted the record reflected that Complainant was not as qualified for the Equipment Servicer position despite his years of experience. The AJ noted that under the scoring system used to determine the best candidate for the Equipment Servicer position, GS-6, the Selectee received a higher score than Complainant and also had more specific experience in the areas required for the Equipment Servicer position. Furthermore, the AJ noted Complainant was unprofessional in his interview, failed to properly answer the questions, and used profanity.
The AJ found Complainant failed to establish pretext. The AJ noted the only evidence that the Complainant presented was that he possessed more years of experience than the Selectee, which she found insufficient to prove that age discrimination existed because seniority and age discrimination are unrelated. Thus, the AJ found that Complainant failed to show by a preponderance of the evidence that the Agency acted on the basis of age.
The Agency subsequently issued a final order dated October 13, 2010. The Agency's final order fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant states he started off during the selection process with considerable advantage over the Selectee who did not even submit KSAOs and questions how the Selectee still managed to score higher than Complainant on the ranking.
ANALYSIS AND FINDINGS
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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, � VI.A. (Nov. 9, 1999) (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").
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she 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. McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
Upon review, we find the AJ's issuance of a decision without a hearing was appropriate as there are no genuine issues of material fact in dispute nor are there are any credibility determinations at issue. In the present case, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. Specifically, the Agency stated that the Selectee was chosen because he received the highest score during the selection process. We note that the Selectee was scored zero for his KSAOs since he failed to submit them with his application; however, he was still ranked higher than Complainant during the selection process. The Agency noted that the Selectee was chosen because of the quality of his interview and his specific experience related to the position. While Complainant had more years of experience at the Agency, Person A stated that the Selectee had the most experience for the position at issue because out of all of the candidates including Complainant, he did more of the Equipment Assignment responsibilities than take calls and pick up equipment. Moreover, the Agency noted that Complainant's interview was unprofessional, that he often veered off topic, and that he used profanity at least once during the interview. Complainant failed to show that his qualifications were plainly superior to those of the Selectee. We find Complainant failed to show that the Agency's actions were a pretext for prohibited discrimination.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
October 26, 2012
__________________
Date
2
01-2011-1136
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111136