0120091582
07-15-2009
Andreana C. Schupbach, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Andreana C. Schupbach,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091582
Agency Nos. 200H-0632-2008100050
200H-0632-2008101387
Hearing No. 520-2008-00438X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 10, 2009 final order concerning
her equal employment opportunity (EEO) 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.
On November 5, 2007, complainant, who has worked for the agency as a
Financial Accountants Technician, GS-6 since 1990 filed an EEO complaint.
Therein, complainant claimed that he was the victim of unlawful employment
discrimination on the bases of race (African American), color (dark
brown), and in reprisal for prior protected EEO activity when:
on September 24, 2007, she learned that she was not selected
for Civilian Payroll Technician position under Vacancy
Announcement 07-09 at the VA Medical Center, Newport New
York. She claimed that she was the only applicant found
qualified for the merit promotion announcement for internal
applicants. She stated that she was interviewed for the
position; however, she was not selected. She stated that the
position was announced again for outside applicants and
a selection was made from that certificate.
The agency accepted the complaint for investigation and assigned it as
Agency Case No. 200H-0632-2008100050.
On February 14, 2008, complainant filed another EEO complaint. Therein,
complainant claimed that she was the victim of unlawful employment
discrimination on the bases of race (black) and in reprisal for prior
protected activity when:
on December 15, 2007, she was notified of her non-selection for
the position of Accounting Technician, GS-525-6/7.
The agency accepted that claim for investigation and assigned it as
Agency Case No. 200H-0632- 2008101387. 1
Following an investigation of the captioned formal complaints, complainant
received a copy of the investigative report and she timely requested a
hearing before an EEOC Administrative Judge (AJ). On January 14, 2009,
the AJ issued a decision without a hearing finding no discrimination. On
February 10, 2009, issued the final order implementing the AJ's decision.
The Commission's regulations allow an AJ to issue a decision without
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 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, 245 (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, 322-323 (1986). The AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition. See
Petty v. Department of Defense, EEOC Appeal No.0120024206 July 11, 2003).
In the absence of direct evidence, complainant has the initial burden
of establishing a prima facie case of discrimination in a claim arising
under Title VII of the Civil rights Act of 1964, as amended, McDonnell
Douglas v. Green, 411 U.S. 792 (1973). To establish a prima facie case of
discrimination in a non-selection decision, complainant must show that (1)
she is a member of a class of protected individuals under Title VII; (2)
she applied and was qualified for the position; (3) she was not selected
for the position despite his qualifications; and (4) the position was
filled by an individual out side of her protected group or that other
circumstances otherwise infer discrimination.
Regarding the claim in complaint No. 200H-0632-2008100050 that complainant
was not selected for the position of Civilian Payroll Technician, the AJ
found that complainant established a prima facie case of race, color and
reprisal discrimination when complainant, a black female applied for the
subject position and was deemed qualified, but was not selected in favor
of white female. Because complainant established a prima facie case of
race, color and reprisal discrimination the burden shifts to the agency
to establish a legitimate non discriminatory reason for the challenged
action. Texas Dept of Community Affairs v. Burdine, 450 U.S. 248,
253-254 (1983). If the agency articulates a non discriminatory reason
through admissible evidence, any prima facie inference would drop from
the case. St. Mary's Honor Ctr.v. Hicks, 509 U.S. 502, 510-11 (1993).
Complainant was the only internal candidate deemed qualified for the
position of Civilian Payroll Technician and she was interviewed by a
panel consisting of her supervisor, Chief of Fiscal Services, another
Payroll Technician and a Payroll Supervisor (all white). All three
members of the interview panel stated that complainant was not able to
answer technical questions regarding payroll processing and she was
not able to sufficiently respond to a question about how complainant
would handle stress at work. Because complainant's interview was deemed
unsatisfactory, the panel requested and obtained permission to interview
external candidates. Four external candidates were interviewed. The panel
found that the selectee, (white female) was able to answer the technical
questions and did not appear to have an issue with stress at work. The
AJ noted that the notes made by the interview panel during the interview
support the interview panel's assertions. Accordingly, the AJ found that
the agency articulated a legitimate, non-discriminatory reason for not
selecting complainant for the position of Civilian Payroll Technician
and complainant has not shown that the reasons provided by the agency
are mere pretext for discrimination.
Agency Case No. 200H-0632-2008101387
Regarding the non-selection for the Accounting Technician position,
the AJ found that complainant has not established a prima facie case
of race and color discrimination because one of the selectees was
black. Complainant was one of the 14 candidates referred as "qualified"
for the position. Three candidates were selected, one internal candidate
(not black) and two external candidates (one black and one not black)
based on their qualifications. The AJ found further that complainant
established a prima facie case of reprisal discrimination. The AJ found
further that complainant has not shown that the agency's articulated
reason (exceptional qualifications of the selectees) is mere pretext
for discrimination.
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 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
July 15, 2009
__________________
Date
1 The Commission notes that in regard to Agency No. 200H-0632-2008101387,
the agency issued a Partial Acceptance on March 5, 2008. Therein,
the agency accepted for investigation the matter identified in claim
(2). However, the agency dismissed a separate claim regarding an agency
official's purportedly condescending remarks and belittling attitude, for
failure to state a claim. Complainant does not address this dismissed
claim on appeal, and the matter will not be further addressed by the
Commission.
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0120090191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091582