0120072357
09-14-2007
Constance M. Callahan, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Constance M. Callahan,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072357
Agency No. 200H-0670-2005100266
DECISION
On June 30, 2005, complainant filed an appeal from the agency's May 26,
2005, 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
affirms the agency's final decision.
At the time of events giving rise to this complaint, complainant
worked as a Part Time (0.75 FTE) Respiratory Therapist, GS-601-8, in
Respiratory Therapy at the VA Healthcare Network in Syracuse, New York.
She had held that position for the previous 18 years. In July 2004,
she sent management an e-mail requesting that she become a fulltime
employee. The agency therefore considered complainant for the fulltime
Registered Respiratory Therapist (RRT), GS-601-7/8, position that was
advertised under Vacancy Announcement No. 528E-04-111. Complainant was
interviewed for the position in September 2004, but was not selected.
Two male candidates were selected for the positions.
On November 29, 2004, complainant filed an EEO complaint alleging
that she was discriminated against on the basis of sex (female) when,
on September 29, 2004, she learned that she was not selected for the
aforesaid position.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) concluding that complainant failed to prove
that she was subjected to discrimination as alleged. The agency found
that complainant established a prima facie case of sex discrimination.
However, it further determined that management articulated legitimate,
nondiscriminatory reasons for selecting the two male candidates,
and that complainant failed to show that those reasons were pretext
for discrimination. It is from that decision that complainant now
appeals.
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 EEOC Management
Directive 110, 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").
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. 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 pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993).
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, nondiscriminatory 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. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990).
For the purposes of this decision, the Commission assumes that complainant
established a prima facie case of sex discrimination. Therefore, the
burden shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its action. We find that the agency has met its burden.
Specifically, three responsible management officials averred that the two
male candidates were selected based upon their interviews, their expressed
interest for cross-training in overnight polysomnography (sleep lab), and
their flexibility in scheduling to participate in training. The record
further reveals that the two male candidates received interview scores
of 267 and 288, whereas complainant received a score of 198.
Since the agency articulated legitimate, nondiscriminatory reasons for
its action, the burden returns to complainant to demonstrate that the
agency's articulated reasons are unworthy of belief. The Commission
finds that complainant has failed to meet her burden and show that
the agency's reasons were untrue. Instead, she acknowledged that she
considered the interview process to be a formality because she already
worked as a Part Time Respiratory Therapist with the agency. Moreover,
she does not deny that she had no interest in cross-training in overnight
polysomnography. For the foregoing reasons, the Commission finds that
complainant has failed to present sufficient evidence to establish that
the agency discriminated against her on the basis of sex when it did
not select her for the fulltime RRT position.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___9/14/07_______________
Date
2
0120072357
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072357