0120160653
02-15-2018
Belia B.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Belia B.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160653
Agency No. 200H-05382015101410
DECISION
On November 13, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 28, 2015 final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Personnel Security Specialist at an Agency medical center in Chillicothe, Ohio. About September 9, 2014, Complainant applied for a Human Resources Specialist (HRS) (Classification and Compensation), GS-0201-11, position under Job Announcement Number FZ-14-AR-1204697. The Agency informed Complainant that it selected another candidate for the position.
On February 18, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic) and sex (female) when it failed to select her for the HRS position and selected a white male instead. Complainant stated that she had over nine years of experience in Human Resources (HR) and the selectee had only three months of said experience. The Agency investigated Complainant's claim.
Investigation
Complainant
In a telephonic affidavit, Complainant stated that she was an outstanding candidate because she has been in HR over nine years. Complainant stated that she worked in the processing and records section of HR, and worked as a Retirement Specialist and as a Security Specialist. Complainant explained, as a Security Specialist, she reviewed the different aspects of position descriptions to determine a sensitivity level for background investigations. Complainant also stated that she has taken HR courses in college. Complainant stated that S1 tends to hire white males.
Selecting Official
In a telephonic affidavit, the Chief of Human Resources (S1) (non-Hispanic, female) stated that she and two other individuals convened a panel to interview candidates for the HRS position. S1 stated the panel asked the candidates predetermined questions and rated the candidates on a point scale against ideal answers.2 S1 stated that the panel received a certificate with six to eight candidates and they just interviewed them all. The first round of interviews, which Complainant participated in, was in September 2014. S1 stated that the panel selected a female candidate (C1) from the first round, but C1 declined based on her belief that the position was for full-time telework. S1 stated that the panel rated C1 at 99 points, the second highest candidate at 48 points, and Complainant third at 45 points. S1 stated that, after C1 declined, the panel did not select the second highest candidate because there was such a big gap in scores, which meant that the candidate could not come in with little training or orientation. S1 stated that the panel was looking for a candidate who had classification experience and could "hit the ground running" doing classification.
S1 stated that she asked for another candidate list after C1 declined the position. S1 stated the second list had 25 to 30 candidates and she asked HR staff to narrow the list to six to eight candidates for interviews. The second round of interviews was in November 2014, and the top- rated candidate from that round (C2) (non-Hispanic, male) was selected.
Summarily, S1 stated that Complainant was familiar with classification because she works in HR, but she did not exhibit participation in classification. S1 stated that C2 showed that he held an on-the-job training Classification position for three months, which is supervised training that the Agency could not afford to offer whomever it selected. S1 stated that C2 had direct knowledge and experience with classification and was the most qualified candidate for the position. S1 stated that, during the interview, Complainant could not articulate the process for pay panels. S1 noted that Complainant may be upset with her because she questioned her about selling third party kitchen products during work hours. S1 stated that she was not aware that Complainant identified her nation origin as Hispanic until the instant complaint.
Panel Members
A panel member (P1) (non-Hispanic, male) stated that the panel members used a consensus scoring method where they discussed each candidate's responses to questions and came up with a score for each candidate. He stated that each applicant was given the interview questions beforehand. P1 stated that he was not aware of Complainant's national origin.
A second panel member (P2) (non-Hispanic, female) stated that S1 provided a set of standard questions with highly-desired and desired responses. P2 stated that the question categories included context of qualification process and policy, management of team and team building, time management, success of process management, and resources collaboration. P2 stated that S1 had the panel members review the responses together and decide on a score to assign each interviewed candidate. P2 stated that Complainant scored lowest in qualification process and policy and C2 ranked high in that area. P2 stated that they ranked the candidates from highest to lowest score and S1 was the decision-maker. P2 noted that this was the first time that she participated in a panel where scores were calibrated as she described. P2 stated that she was not aware of Complainant's national origin until the instant complaint.
The panel members stated that they did not discriminate against Complainant.
Investigative Record
The Introduction for the position description for HR Specialist (Classification/Compensation), GS-0201-11, states:
Incumbent serves as the primary Classification/Compensation Specialist with an emphasis as the subject matter expert in the area of pay administration and classification for the Chillicothe Veterans Affairs Medical Center. The position requires a high degree of skill, knowledge and judgment in the area of compensation administration for all professional and scientific positions located throughout the Medical Center. The Human Resources Specialist provides technical advice and guidance to supervisors and managers in the area of pay, compensation and classification.
The record contains an interview list, dated September 30, 2014, for eight candidates. The September 30 list indicates that three candidates did not interview, C1 scored 99, Complainant scored 45, and the three remaining candidates scored 57, 48, and 33. The record also contains an interview list, dated November 3, 2014, for nine candidates. The November 3 list indicates that C2 scored 90, four candidates scored 0, and the remaining four candidates scored 45, 42, 24, and 18.
Post Investigation
Following the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge or an immediate final agency decision. Complainant requested the latter.
In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The decision stated that Complainant failed to show that she had adequate classification experience, whereas C2 demonstrated that he worked directly as a Classification Specialist. The decision found that Complainant failed to show her qualifications were plainly superior to those of C2. The decision stated that Complainant failed to show that her protected classes motivated management's decision to not select her.
The instant appeal from Complainant followed. On appeal, Complainant stated that the Agency conducted an administrative investigation of allegations that S1 violated standards of ethical conduct, mismanaged HR resources and engaged in prohibited personnel practices. Complainant stated that the administrative investigation determined that S1 bypassed more qualified internal candidates to hire C2. Complainant provided excerpts of the administrative investigation report, which stated:
[C2] testified that the classification work he did at [his prior federal agency] was unlike anything he was required to do at the Chillicothe VA and he admitted that he needed - and still needs - extensive training to do his job. . . . Also interviewed from [the first] cert was [Complainant], an internal candidate, who according to testimony received from knowledgeable HR staff, was far more qualified than [C2] for the position. She only received a score of 45. It was noted in testimony by more than one employee that [S1] had expressed negative feelings about [Complainant] to HRM staff prior to the interviews. Those feelings apparently arose from an incident that took place approximately 6 months after [S1] became the HRO where her background check came back with a finding that required adjudication and [S1] was highly critical of [Complainant's] handling of the matter. From other testimony received . . . it was reported that [S1's] criticism of [Complainant] was unwarranted and that she was qualified to be hired into the classifier position. . . . HR staff have testified that [S1] showed a preference for white, male Air Force Veterans for her HR hires. . . .
[S1] committed a prohibited personnel practice by injuring the chances for employment of [Complainant], a then internal candidate for that position, because
of personal animus that [S1] held toward [Complainant]. Complainant stated that she was better qualified than C2 as she had nine years of general HR experience. 3
Also, Complainant stated that C2 submitted an incomplete application package.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on national origin and sex, the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the position at issue. We find further that Complainant failed to show, by a preponderance of the evidence, that the articulated reasons are a pretext for discrimination. Both Complainant and C2 were found to hold at least the minimum qualifications for the HRS position. The selecting official, S1, stated that the panel sought someone who had classification experience and could "hit the ground running" in that area. She stated the ultimate selectee, C2, had three months of supervised training as a Classification Specialist at another federal agency and that was experience that her agency could not provide to anyone selected. Further, we note that the original selectee, C1, is a female and she declined the position. The selecting official and two panel members all stated that they were not aware of Complainant's national origin of Hispanic.
We find that Complainant has not shown that her qualifications were so superior to those of the selectee as to compel a finding of discrimination. And, the Commission's regulations do not prohibit an agency from selecting the candidate of its choice from among a group of eligible candidates who are deemed qualified for the position. Beckett v. Dep't of the Navy, EEOC Request No. 05880086 (July 25, 1988). While Complainant has presented several challenges to the Agency's reasons for her non-selection, she has presented insufficient evidence to establish, by a preponderance of the evidence, that the Agency's articulated reasons are pretextual, or that her sex or national origin actually played a role in the agency's decision-making process. See Reeves, 530 U.S. at 141. Therefore, after a careful review of the record, we AFFIRM the final agency decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 15, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 S1 stated that the interview questions were taken from the HR classification manual.
3 S1 was placed on a detail outside of HR, in Quality Improvement, on February 9, 2015.
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