0120092054
08-20-2009
Deborah L. Kidd-Beswick, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Deborah L. Kidd-Beswick,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092054
Hearing No. 520200900142X
Agency No. 200H05232008102910
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 18, 2009 final order concerning her
equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency discriminated against her on the
basis of disability (atherosclerosis)1 when on April 16, 2008; she was
informed that she was not eligible for reinstatement to the position of
Human Resources Assistant (OA) GS-203-5 target 7, vacancy announcement
number 08-237.
The record indicates that on March 21, 2008, the agency externally
announced a vacancy for a Human Resources Assistant position with
certain areas of consideration including current permanent employees
of the agency's Boston Healthcare System and former federal employees
eligible for reinstatement. On March 28, 2008, complainant applied
for the position at issue herein. The record further indicates that
complainant had previously been employed by the agency's Health Care
Financial Administration and voluntarily resigned her position on June
6, 1986, twenty-two (22) years prior to the events giving rise to this
complaint. In a letter to the complainant, the agency advised that
complainant was not considered for the position because she had applied
under Merit Promotion as Reinstatement eligible and was not eligible
for reinstatement. As part of her application, complainant submitted
a personnel form SF-52 which indicated that when she resigned from
her former federal position in 1986, her status was that of a career
conditional employee. The record further indicates that in accordance
with the Code of Federal Regulations at 5 C.F.R. � 315.401(b) the time
limit for reinstatement eligibility for career conditional employees
is three years. Based on these regulations, the agency determined that
complainant could not be considered for the position under the vacancy
announcement.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge, or
alternatively, to receive a final decision by the agency. Complainant
timely requested a hearing. Following a hearing, the AJ found that
complainant was not discriminated against on any alleged basis. In so
finding, the AJ determined that even assuming arguendo that complainant
was able to establish a prima facie case of disability discrimination, the
agency articulated legitimate non-discriminatory reasons for its actions.
The agency's final order implemented the AJ's decision and the requests
that the Commission affirm its decision.
On appeal, complainant argues that her status as a disabled employee
entitles her to special hiring consideration for the position.2 In
addition, complainant maintains that the agency discriminated against
her by denying her the position and she alleges that the administrative
judge assigned to the matter does not possess the requisite knowledge
of various government regulations to qualify her to render a decision
in this matter.
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 Construction
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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
The Commission determines that the agency established a legitimate
non-discriminatory reason for not hiring complainant for the Human
Resources position at issue. Specifically, the agency indicated that
in her application for the position, complainant stated that she was
eligible for reinstatement, when in fact, she was not so eligible.
In that regard, the agency determined that complainant could not be
considered for the position. The record indicates that reinstatement
rights for career conditional employees are limited to three years.
Complainant applied for the position 22 years after her resignation in
1986. Complainant presented no evidence that the agency's articulated
reason for determining that she was not eligible for the position was
a pretext for discrimination. She did not deny that her form SF-52
indicated that she was a career conditional employee at the time of
her resignation. Rather at the hearing in this matter, she argued
initially that she had unlimited reinstatement rights, then later stated
that the SF 52 she submitted with her application was in error and had
been recently corrected. However, complainant made no showing that the
agency's articulated reason for its action was false. In that regard,
we find that the AJ's finding of no discrimination in this matter was
proper.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
August 20, 2009
__________________
Date
1 For purposes of analysis, the Commission assumes without finding that
complainant is an individual with a disability. 29 C.F.R. �1630.2(g)
(i).
2 We note here that record evidence including complainant's hearing
testimony indicates that complainant never provided any agency official
with information or medical documentation regarding a disability.
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0120092054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092054