Diana Ross, Complainant,v.Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 12, 2008
0120083371 (E.E.O.C. Dec. 12, 2008)

0120083371

12-12-2008

Diana Ross, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.


Diana Ross,

Complainant,

v.

Dr. James B. Peake,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120083371

Agency No. 200H-0630-2007103267

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's June 25, 2008 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.

During the period at issue, complainant was employed as a Medical

Instrument Technologist, GS-8, at the agency's Brooklyn Veterans Affairs

Medical Center in Brooklyn, New York.

On August 20, 2007, complainant filed the instant formal complaint.

Therein, complainant alleged that the agency discriminated against her

on the basis of reprisal for prior EEO activity when management did

not approve her for a promotion by upgrade of her current position as a

Medical Instrument Technologist, GS-8 through the process of conversion

to a Hybrid Title 38, GS-9 position.

Specifically, complainant alleged that an identified board member (B1) on

the selection board influenced the board's decision not to promote her.

Complainant further alleged that during the relevant time, the board

received an outdated position description for her position which led to

its decision not to promote her.

At the conclusion of investigation, complainant was provided with a copy

of the report of the investigation and notice of the right to request a

hearing before an EEOC Administrative Judge or a final decision within

thirty days of receipt of the correspondence. Complainant did not

respond. On June 25, 2008, the agency issued the instant final decision.

In its June 25, 2008 final decision, the agency found no discrimination.

Specifically, the agency found that complainant did not establish a

prima facie case of reprisal discrimination. The agency further found

that management articulated legitimate, nondiscriminatory reasons

for its actions which complainant failed to show were a pretext for

discrimination.

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

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, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (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. 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).

The record contains an affidavit from the Human Resources Specialist

(HRS). Therein, HRS stated that the former Assistant Chief (AC) of

Human Resources coordinated the selection process for the position of

Hybrid Title 38, GS-9. HRS stated that the board was in compliance with

the guidelines used in making their recommendations for the subject

position. Specifically, the HRS stated that the board "compared the

functional statement of the employee to the qualification standards and

determined that the position was set at the appropriate grade according

to the standards." HRS further stated that she was not involved in the

selection process "at this time. I only became involved after [AC] left

the VA and I was asked to act as the new coordinator, at this point the

selections had been made already. My understanding is that services

made recommendations along with any self nominations from employees

to [AC]. All board members were cleared with the employee's service

prior to appointment." HRS stated that the board members reviewed the

following documents: board action; employee qualification update sheet;

functional statement; and qualification standard for the employee's

position in making their determination for recommendations. HRS stated

that the board reconsidered complainant's paperwork once her outdated

description came to light. Furthermore, HRS stated that complainant

was treated the same as other candidates for the subject position.

With respect to complainant's allegation that B1, who was involved

in her prior protected activity, influenced the decision of the board

not to convert her position to a Hybrid position, GS-9, HRS denied it.

Specifically, HRS stated, "Absolutely not. I was present during the

review of [B1's] paperwork and the alleged board member conducted himself

in a professional manner and did not influence the board to make any

inappropriate decisions."

In the instant case, we find that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Complainant has adduced

no evidence to show that these reasons were instead a pretext for

discrimination.

After a review of the record in its entirety, including consideration

of all statements on appeal, it is the decision of the Equal Employment

Opportunity Commission to AFFIRM the agency's final decision because

the preponderance of the evidence of record does not establish that

discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 (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 (Z0408)

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

December 12, 2008

Date

2

0120083371

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120083371