Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 23, 2014

0120123373 (E.E.O.C. Apr. 23, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120123373

Agency No. 200405582010101968

DECISION
Complainant filed an appeal from the Agency’s July 27, 2012 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. and 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 decision.

BACKGROUND
At the time of events giving rise to this complaint. Complainant was an applicant for
employment as a Staff Physician (Radiologist) in the Agency's National Teleradiology Program
(NTP) vacancy announcement T38-09-116, at the VA Medical Center (VAMC) in Durham,
North Carolina. On June 17, 2010, Complainant filed an EEO complaint alleging that the
Agency subjected her to discrimination on the bases of race (African-American), color (black),
sex (female), and age (62), when she learned on February 26, 2010, that she was not selected
as a Radiologist at the VA Medical Center in Durham, NC.

Previously, in v. Dep’t of Veterans Affairs

, EEOC Appeal No. 0120103532 (February
18, 2011), the Commission reversed the Agency’s dismissal of Complainant’s complaint,
ordered the Agency to process the complaint in accordance with Commission regulations. The
Commission found that Complainant’s complaint alleged that the selection process was
cancelled to allow the Agency to avoid hiring her.
At the conclusion of 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 EEOC
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Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b).

In its Decision, the Agency found that Complainant applied for the position of Staff Physician,
under the identified vacancy announcement in July 2009. The Agency found that the Agency
also recruited locally for the teleradiology positions in Durham, North Carolina. Two
candidates who applied through the vacancy announcement were contacted by the reviewing
committee and offered employment, but neither candidate was hired: one applicant declined the
position and the second offer was withdrawn after further inspection of the applicant’s
qualifications. The Agency found that Complainant’s application had been reviewed, but she
was never contacted for an interview because the members of the reviewing committee found
that Complainant’s recent experience and subspecialty in pediatrics was not a good fit for the
Agency’s positions. The Agency noted that ultimately, no one was hired from the vacancy
announcement. The Agency further noted that when she inquired, Complainant was told that
two individuals had been hired to fill radiology positions at Durham. One applicant was
already an Agency employee and the other was recruited through an advertisement in a training
journal. The Agency found that Complainant was further informed that after vacancy
announcement T38-09-116 closed, the Agency would re-advertise for the positions. The
Agency noted that Complainant did not reapply for the position.

The Agency found that Complainant did not show that the Agency’s legitimate,
nondiscriminatory reasons for its actions were a pretext to mask discrimination. The Decision
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

On appeal, Complainant notes that the Agency filled two positions during the time that the
vacancy announcement was pending, and that a number of candidates were selected whose
names were never on a certificate or list of eligible candidates. Complainant states this shows
the Agency’s statements regarding the selection process were a pretext to allow the Agency to
hire the local candidates it selected without any of them being required to apply through the
vacancy announcement.

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. (November 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”).
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To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). 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 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy

, EEOC
Request No. 05950351 (Dec. 14, 1995).
In the instant case, we find the Agency’s Final Decision is supported by the evidence. We find
no evidence that the Agency made any selection from the identified vacancy announcement for
which Complainant submitted her application. Even so, we find the evidence shows that the
officials who reviewed the applications of candidates who did apply through the vacancy
announcement were unaware of Complainant’s race, color, and age at the time of the review.
We note the officials did state that they could discern her sex from Complainant’s name, but
that is all. We find Complainant presented no evidence that discrimination motivated the
Agency’s decision to close the vacancy announcement without making a selection from it.

In her appeal, Complainant compares her qualifications to other candidates. We do not reach
this level of analysis because the qualifications of the individuals selected to fill the vacant
positions at Durham VA Medical Center were never compared to Complainant’s qualifications.
Similarly, whether the Agency properly circumvented Complainant’s veteran’s status by hiring
candidates responding to a trade association advertisement or through direct application to the
Agency, is not within the Commission’s jurisdiction to decide.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision, finding
no discrimination.

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:

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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
0120123373

5
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

Date
April 23, 2014