Barbara A. Nix, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 8, 1999
01976758 (E.E.O.C. Oct. 8, 1999)

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