0120081811
08-25-2009
Courtney Robinson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Courtney Robinson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081811
Hearing No. 430-2007-00106X
Agency No. 200406522006102130
DECISION
On March 6, 2008, complainant filed an appeal from the agency's February
5, 2008 final order 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 order.
ISSUE PRESENTED
Whether there is substantial evidence in the record to support the
AJ's finding after a hearing that complainant failed to establish
discrimination.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Human Resources Assistant, GS-0203-6, assigned to the agency's VA
Medical Center in Richmond, Virginia. On July 3, 2006, complainant filed
an EEO complaint alleging that she was discriminated against on the bases
of race (African-American) and reprisal for prior protected EEO activity
[arising under Title VII] when:
(1) on about January 27, 2006, she was not selected for the position
of Human Resource Assistant (Employee Benefits), GS-203-07 (Vacancy
No. 06-30);
(2) on or about March 15, 2006, she was not selected for the position
of Human Resource Specialist, GS-201-07/09/11 (Vacancy No. 06-31); and
(3) in or about April 2006, she was not selected for the position of Human
Resource Specialist (Labor and Employee Relations), (Vacancy No. 06-57).
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). Complainant timely
requested a hearing and despite the agency's filing of a Motion for a
Decision Without a Hearing, the AJ held a hearing on December 4, 2007
and issued a decision on January 22, 2008.
AJ Decision
The AJ addressed the first vacancy, Human Resource Assistant (Employee
Benefits), as follows: complainant applied and was deemed best qualified
(BQ) for the position. On January 13, 2006, complainant and two other
candidates, Selectee One and Selectee Two (both African-American),
were referred to the Selecting Official (SO) (Caucasian) for further
consideration. SO testified that the candidates deemed best qualified
held the same position in the Processing and Records (P & R) Section
of Human Resources Management Services (HRMS). SO maintained that he
initially chose Selectee One for the position because she was "probably
one of the two or three best employees" he had supervised in his career.
SO contended that when Selectee One accepted another position in HRMS
shortly after her selection, he chose Selectee Two to fill the vacancy
because she "did very high quality work from my perspective and was a
real joy to work with...." SO stated that complainant's performance
was "acceptable", but that he had some reservations about some of
complainant's conduct, as well as her performance. SO stated that for
instance, he had witnessed complainant using the agency computer and
photocopier for her personal business. SO stated that additionally,
without seeking prior permission, complainant once made photocopies
of documents from agency personnel folders on behalf of the Union.
SO also testified that complainant had tardiness issues and that she
failed to keep him informed regarding a project, as instructed.
The AJ further found as follows: complainant testified that while SO did
bring to her attention that she was late on a couple of occasions, she
made an improvement in reporting to work on time. Complainant argued
that Selectee Two, who worked in her office, was consistently late,
but that SO would not have been aware of Selectee Two's tardiness.
Complainant also testified that SO did instruct her to keep him informed
of the status of the Total Folder Control project but that she was
busy and did not follow-up with him on a regular basis. Complainant
further testified that SO threatened her in 2003 that if she filed an
EEO complaint she would not be promoted. Complainant also testified
however, that she did not actually file such a complaint at that time,
and did not actually engage in any EEO activity between 2003 and 2006.
The AJ noted that based on the totality of the evidence, including the
credibility of the witnesses, the assertion that SO threatened her was
unworthy of credence. The AJ found no evidence of retaliation. Finally,
noting that a member of complainant's racial group was selected for the
position in question, the AJ found that complainant did not establish
discrimination as to this challenged action.
As to the second vacancy for the position of Human Resource Specialist,
the AJ found as follows: complainant applied for the position and was
referred for further consideration. Approximately 6 candidates were
interviewed (including complainant), and none of the panel members
ranked complainant highest. The agency articulated a legitimate
nondiscriminatory reasons for its selection action, namely, the overall
qualifications of the Selectee (Caucasian female) were superior. The AJ
found that the record showed that at the time of selection, the Selectee,
who had a Bachelor of Science Degree in Personnel Management, was employed
as a GS-07 Human Resources Assistant in the Employee Relations section and
that complainant, who had a certificate in Clerical Arts, was employed
as a GS-6 Human Resources Assistant in the P & R section. The AJ found
that complainant has failed to show by a preponderance of the evidence
that her qualifications were significantly more superior to those of
the Selectee. Additionally, complainant failed to demonstrate that the
agency was motivated by discriminatory animus based on her race or prior
EEO activity. Accordingly, the AJ found no discrimination with respect
to the selection action.
Addressing the third vacancy for the position of Human Resource Specialist
(Labor and Employee Relations), the AJ found as follows: complainant and
five others applied for the position, however, the Lead Human Resources
Specialist determined that only one candidate (Caucasian male) had the
specialized experience for the position, and referred only that one
candidate to the selecting official. The selecting official selected
the only candidate referred to him, in fact, testifying that he did
not know that others had applied. The AJ noted that since complainant
did not allege that either the Lead Human Resources Specialist or the
selecting official had discriminated against her, she has not established
a prima facie case of discrimination or retaliation. The AJ found no
discrimination as to the third vacancy. The agency subsequently issued
a final order adopting the AJ's finding that complainant failed to prove
that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant, through counsel, asserts that of the positions in
this case, the clearest example of discrimination is found in announcement
06-31 for a GS-7/9/11 Human Resources Specialist. She states that for
position 06-31, complainant was denied the position in favor of a white
male from outside the agency. She states that the Selectee's Federal
experience consisted of three years as a Medical Support Assistant,
GS-5, over the three years prior to the selection. She notes that there
is no work in Human Resources. She states that the Selectee was not,
as the Administrative Judge asserts, a GS-7 in Human Resources at the
time of the selection. She states that the Selectee had no relevant
training or experience. She asserts that a review of the Selectee's
responses to the KSA's reveals that his GS-5 position was essentially
that of providing clerical assistance to doctors. She notes that there
is reference in his KSA responses to higher education but no listing
of any degrees and no education described in the summary provided for
the selection. She states that in contrast to the Selectee, complainant
had been employed at the agency for 20 years. She was a GS-6 working
in Human Resources as a Personnel Actions Clerk and had served as a
supervisory clerk (GS-8) on a prior occasion. She had been a medical
clerk at the agency and had worked her way up to her GS-6. She asserts
that there is no objective way she could be considered less qualified
than a lower graded employee with at least 17 years less experience
in a field unrelated to the job in question. Complainant does not
specifically challenge any of the other findings of no discrimination.
Complainant asks the Commission to make a finding of discrimination.
In reply, the agency asserts that contrary to complainant's assertion on
appeal, the record clearly shows that the Selectee for announcement number
06-31 (Human Resources Specialist, GS-7/9/11) was a Caucasian female,
not the Caucasian male whom complainant describes. Further, the agency
asserts that the record clearly shows that the Selectee was a GS-7,
Human Resources employee. The agency avers that the only Caucasian,
male applicant who was selected from the three selections at issue was
in announcement 06-57. The agency states that of the six applicants
for the 06-57 position, the Lead Human Resources Specialist determined
that only one applicant met the minimum requirements to be qualified for
the position and referred that one applicant, who was later selected by
the selecting official. The agency notes that complainant has testified
that she is not alleging that either the Lead Human Resources Specialist
or the selecting official for this vacancy discriminated against her.
For the foregoing reasons and for the reasons articulated in the AJ's
Decision, the agency requests that the Final Agency Order be affirmed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, assuming arguendo that complainant could establish a
prima facie case of discrimination on the alleged bases as to all three
vacancies, the agency has articulated legitimate, nondiscriminatory
reasons for its actions (as described above in the summary of the AJ's
findings). We note that in her appeal brief, complainant appears to
have conflated the selectees for the second and third announcements.
The position for which a Caucasian male (GS-5) was selected was Vacancy
No. 06-57, the position for which specialized experience in labor and
employee relations was required. The Lead Human Resources Specialist
testified that the individual whom she referred (and was selected)
was qualified at the GS-7 level because of his educational background
(bachelor's degree and master's degree)1, which she states can be a
substitute for specialized experience. See Hearing Transcript (HT)
at 161-2. She further testified that complainant did not appear to
possess comparable specialized experience or educational background
as a substitute. Id., at 164. The Commission concludes that the AJ's
finding that complainant did not prove pretext as to any of the challenged
actions, is supported by substantial evidence in the record.
In so finding, we note that the agency has broad discretion to
set policies and carry out personnel decisions, and should not be
second-guessed by the reviewing authority absent evidence of unlawful
motivation. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 259; Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997). Complainant may be able to establish
pretext with a showing that her qualifications were plainly superior
to those of the selectee. Wasser v. Department of Labor, EEOC Request
No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981). Here, complainant has failed to make this showing as
to any of the vacancies.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 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
08/25/09
__________________
Date
1 A review of the Selectee's application package reveals that he mentioned
courses that he took as part of his "undergraduate and graduate studies."
Report of Investigation (ROI), at Ex. C-9.
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0120081811
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081811