01976758
10-08-1999
Barbara A. Nix, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Barbara A. Nix, )
Appellant, )
) Appeal No. 01976758
v. ) Agency No. 96-1946
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final agency
decision (�FAD�) concerning her complaint of employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In her complaint, appellant alleged that she was
discriminated against on the bases of race (Black) and reprisal (prior EEO
activity) when: (1) she was denied a pay adjustment on November 12, 1995;
and (2) she was not selected for the position of Patient Representative,
GS-9, in February 1996. This appeal is accepted in accordance with
the provisions of EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a GS-7/Step 1 Patient Services Assistant, at the agency's Medical
Center in Atlanta, Georgia (�facility�). In November 1995, appellant was
promoted to this position from a GS-4/Step 10 Medical Clerk position.
Appellant requested a pay adjustment to the GS-7/Step 10 level because
prior to her employment with the agency, she had worked as a GS-11 Equal
Employment Opportunity Specialist with the Department of Defense and
because after joining the agency at the GS-4 level, she was granted a
pay adjustment to the Step 10 level to compensate for her loss in pay.
The Chief of the Human Resources Management Services Office (�Chief�)
stated that when appellant began her employment with the agency she
was afforded the earned rate rule application which adjusted her pay
rate from a Step 1 to Step 10 because she had previously been employed
at the GS-11 level. The Chief further stated that agency policy only
allows an employee to use the earned rate rule once.
As for her nonselection for the Patient Representative position,
appellant asserted that due to her past experiences at the facility and
the lack of Blacks in higher level positions, she believed that she was
not selected because of her race. The Selecting Official (�SO�) for the
Patient Representative position stated that he neither interviewed nor
selected appellant because she failed to submit the requisite Supplemental
Qualifications Statement with her application.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on June 14, 1996. The
agency accepted the complaint for processing, and at the conclusion
of the investigation, appellant was granted thirty days to request a
hearing before an EEOC Administrative Judge. Appellant failed to request
a hearing within the thirty-day time period. Thereafter, the agency,
in accordance with 29 C.F.R. �1614.110, issued a final decision.
The FAD concluded that appellant established a prima facie case of race
discrimination regarding her nonselection because she was qualified
for the position but was not selected in favor of the selectee, an
individual outside her protected class. However, the FAD failed to
determine whether appellant established a prima facie case of race
discrimination regarding the pay adjustment issue, but the FAD included
the issue in its pretext analysis. The FAD further concluded appellant
failed to establish prima facie cases of reprisal regarding both the pay
adjustment and the nonselection issues because appellant failed to show
that the Chief or the SO had actual knowledge of her prior EEO activity
at the time of the allegedly discriminatory actions.
The FAD concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that agency policy
precluded a second pay adjustment and that she was not selected
for position because she failed to submit the required Supplemental
Qualifications Statement with her application. Finally, the FAD found
that appellant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination
or retaliation.
On appeal, appellant contends that both the EEO Counselor and the
Investigator failed to properly investigate whether others had their pay
adjusted twice contrary to the assertions of the Chief. Appellant also
contends that the FAD improperly found that the agency articulated
legitimate, nondiscriminatory reasons for the nonselection. Appellant
states that the vacancy announcement for the position provided that the
Supplemental Qualifications Statement could be submitted within seven days
of the closing date of the announcement. Appellant further states that
since the selectee was chosen prior to the expiration of additional seven
day period, she did not submit her Supplemental Qualifications Statement
because she was told that there was no need to submit it at that point.
In response, the agency contends that it was appellant's burden
to demonstrate that she was treated differently than others when
requesting a second pay adjustment. The agency states that there was
no requirement for either the EEO Counselor or the Investigator to
doubt the veracity of the agency policy concerning pay adjustments.
Finally, the agency contends that there is no evidence in the record to
corroborate appellant's assertion that she was prevented from completing
the application process.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996), and Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission finds that appellant failed to present sufficient
credible evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination or retaliation.
Notwithstanding appellant's assertions that the facility had few Blacks
in GS-7 and higher level positions and that other employees received more
than one pay adjustment, we find that the appellant did not adequately
substantiate her assertions by providing evidence showing that race or
retaliation was the true motivation behind the agency actions.
As for appellant's appeal contentions, we find nothing improper regarding
the manner in which either the EEO Counselor or the Investigator handled
the pay adjustment issue. When appellant was asked to name individuals
with information regarding other employees receiving more than one pay
adjustment, appellant refused to provide any individual names, stating
that she did not want to put them on the spot. Regarding appellant's
assertion that the agency selected the selectee prior to allowing her a
fair opportunity to submit her Supplemental Qualifications Statement, we
find that appellant did not raise this issue prior to this appeal. As a
result, the record contains no evidence to substantiate her assertion.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
October 8, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations