0120093815
08-04-2011
Doris M. Randleman, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Doris M. Randleman,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093815
Hearing No. 470-2008-00141X
Agency No. 200J-0552-2007104073
DECISION
On September 18, 2009, Complainant filed an appeal from the Agency’s
August 25, 2011, 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 Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence in the record supports
the EEOC Administrative Judge’s decision that Complainant failed to
demonstrate that the Agency discriminated against her on the basis of
race and reprisal in connection with a non-selection.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a GS-06 Health Technician at the VA Medical Center’s Mental Health
Service in Dayton, Ohio.
In June 2007, Complainant applied for the position of Prosthetics
Representative, GS-0672-7/9/11, advertised under Vacancy Announcement
No. 07-049. Under “Grade Determination,” the announcement stated
the following criteria for determining the grade of candidates:
(a) GS-9: one year of GS-7 experience or a master’s degree in a
business or medical field; (b) GS-11: one year of GS-9 experience or a
PhD in a business or medical field. Under “Basis of Rating,” the
announcement indicated that candidates would be rated on the degree to
which they possess the required knowledge, skills, and abilities (KSAs).
Specifically the announcement requested that the candidates address in a
separate narrative statement each of the following KSAs: (1) Knowledge of
methods to identify trends and causation factors sufficient to analyze
prepared data and gather information to inform and advise management;
(2) Ability to advise clinicians on the selection, prescription and
acquisition of a full range of prosthetic devices; (3) Ability to
maintain liaison with prosthetic supply manufacturers and dealers by
inspecting their facilities and services, and participating in the award
of prosthetic appliance contracts by providing advisory services to
contract specialists; (4) Ability to initiate new ideas and approaches
and demonstrate resourcefulness; and (5) Ability to manage resources,
e.g. space, equipment, supplies, etc., and personnel at the local level.
On July 6, 2007, after reviewing each candidate’s application, a
Human Resources Specialist (HRS – Caucasian) qualified Complainant
at the GS-7 level and the Selectee (Caucasian) at the GS-11 level.
On July 9, 2007, HRS sent the Selecting Official (SO – Caucasian)
the certificates of eligibles for the position, along with each
candidate’s application. There were a total of 20 candidates on six
different certificates (internal GS-7, GS-9, GS-11 and external GS-7,
GS-9, GS-11). Complainant was on the internal GS-7 certificate and the
Selectee was on the internal GS-11 certificate.
On August 3, 2007, SO selected the Selectee for the position.
SO indicated on the GS-7 and GS-9 certificates that he did not conduct
interviews with those candidates because candidates on other certificates
scored higher. SO indicated on the GS-11 certificates that he conducted
performance-based interviews with those candidates. On August 23, 2007,
HRS1 informed Complainant that she was qualified for the position and
referred for consideration, but not selected.
On October 3, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (African-American),
sex (female), color (Black), and reprisal for prior protected EEO
activity when:
1. On August 30, 2007, she was notified that she was not selected
for the position of Prosthetics Representative, GS-0672-7/9/11, advertised
under Vacancy Announcement No. 07-409; and
2. On or about August 7, 2007, she was asked if she spent 100%
of her time on union matters.
On November 20, 2007, the Agency accepted claim 1 for investigation
but dismissed claim 2 pursuant to 29 C.F.R. § 1614.107(a)(4), due
to having raised the matter in a negotiated grievance procedure that
permits allegations of discrimination. Specifically, the Agency noted
that Complainant had filed an October 12, 2007 grievance on the same
matter and that a decision was issued on October 25, 2007.
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 Administrative Judge (AJ). Complainant
timely requested a hearing. On May 9, 2009, at a prehearing conference,
Complainant withdrew her claims of sex and color discrimination. The AJ
held a hearing on July 7, 2009 and issued a decision on August 12,
2009.1 The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected her
to discrimination as alleged.
The AJ affirmed the Agency’s dismissal of claim 2. The AJ found the
following facts regarding claim 1: Complainant previously worked as a
Purchasing Agent in Prosthetics from 1992 to 1997. Complainant has
represented several employees in EEO cases in the past and has also
filed other prior EEO complaints. SO rated the candidates’ KSAs from
their applications. Based on the scoring of the KSAs, SO determined
that the highest scoring candidates were from the GS-11 certificates.
Each of the GS-11 certificates contained two candidates. One of
the candidates on the GS-11 certificates (C1 – African-American)
did not submit any KSAs. However, SO believed that if he interviewed
one person from that certificate, he was obligated to interview all
persons from that certificate. SO believed that the four candidates
from the two GS-11 certificates were sufficient for the purposes of
making the selection; therefore, he decided to conduct interviews only
of the candidates from the GS-11 certificates. None of the scores from
the candidates on the GS-7 certificates were high enough to warrant
interviewing those individuals. Complainant was on the GS-7 certificate
and did not score high enough on the application to warrant an interview.
Interviews were conducted by SO and two panel members (P1 – Caucasian,
P2 – Asian). P1 and P2 took no part in the scoring of the KSAs or in
the decision to interview only those persons from the GS-11 certificates.
Individuals interviewed for the position included the Selectee, C1, and
two other individuals (one Caucasian, one an unknown race). The position
required that the successful candidate be evaluated by the Professional
Standards Board (Board) before starting in the position. Although the
Selectee was selected at the GS-11 level, the Board rated her at the
GS-9 level. The Selectee accepted the position at the GS-9 level.
Initially, the AJ found that the Agency articulated a legitimate,
nondiscriminatory reason for Complainant’s non-selection. Specifically,
the AJ found that SO testified credibly that, based on his scoring of
the KSAs, he determined that the highest scoring candidates were from
the GS-11 certificates and therefore interviewed only those candidates.
Next, the AJ found that Complainant failed to prove that the Agency’s
articulated reason was a pretext for discrimination. First, the AJ found
that Complainant failed to establish that she was treated less favorably
than similarly situated persons outside of her protected classes.
Specifically, the AJ determined that Complainant was not similarly
situated to the GS-11 candidates that received interviews and that she
was similarly situated to, but not treated differently than, the GS-7
candidates that did not receive interviews.
Second, the AJ found that Complainant failed to establish that her
qualifications for the position were plainly superior to those of
the Selectee. The AJ found that the evidence did not establish that
the difference in qualifications between Complainant and the Selectee
were of such significance that a reasonable employer would have found
Complainant to be significantly better qualified for the job.
Finally, the AJ addressed several arguments presented by Complainant.
Regarding Complainant’s argument that the Selectee was not qualified for
the position at the GS-11 level because the Board reduced the Selectee’s
level from GS-11 to GS-9, the AJ found that the Board’s actions occurred
after the selection and that SO acted solely on information available to
him at the time of the selection. Regarding Complainant’s argument
that HRS resigned two weeks prior to the hearing to avoid testifying
about his part in the selection, the AJ found that her contention was
unsupported speculation and irrelevant. Regarding Complainant’s
argument that HRS should have rated her at a higher level, the AJ found
that Complainant offered no proof that her rating at the GS-7 level was
discriminatory or even in error. In addition, the AJ noted that GS-9
candidates fared no better than GS-7 candidates in the selection process.
Regarding Complainant’s argument that the fact that C1 received
an interview shows she was discriminated against, the AJ found that
her argument failed for several reasons. Specifically, the AJ found
that Complainant could not show that her treatment was based on race
when C1, an individual of the same race, was treated more favorably.
In addition, the AJ found that Complainant and C1 were not similarly
situated because C1 appeared on the GS-11 certificate. Further, the
AJ found that C1’s failure to submit his KSAs was excused when SO
decided to interview another candidate from the same certificate on
which C1’s name appeared. The AJ noted SO’s belief that he had to
interview everyone from a certificate once he decided to interview one
candidate from that certificate.
CONTENTIONS ON APPEAL
On appeal,2 Complainant contended3 that the AJ ignored relevant material
facts presented at the hearing and admitted as hearing exhibits.
First, Complainant argued that SO erred in scoring the Selectee’s
KSAs higher than her KSAs. Specifically, Complainant asserted that KSAs
must be job-related and that the Selectee’s KSAs were not job-related
because they were limited to cardiology, not prosthetics. In addition,
Complainant asserted that the Selectee’s KSAs reflected that she had
no prior prosthetics experience.
Second, Complainant argued that her qualifications were far more
superior to the Selectee’s. Specifically, Complainant presented the
following comparison of qualifications: (a) she had an associate degree,
a bachelor’s degree, and a master’s degree, whereas the Selectee
only had a bachelor’s degree; (b) she had four and a half years of
prior prosthetic experience as a Prosthetics Clerk/Purchasing Agent
and 11 years experience working with the prosthetic needs of elderly
patients, whereas the Selectee had no prior prosthetics experience;
(c) she had 11 years of experience supervising 15 staff employees and
11 years of experience as a union official (which was not considered),
whereas the Selectee’s outside experience was considered.
Third, Complainant argued that the Selectee was given preferential
treatment when HRS rated the Selectee higher than her qualifications
indicated and rated Complainant lower than her qualifications indicated.
Regarding the Selectee’s GS-11 level rating by HRS, Complainant noted
that the Board subsequently rated her at the GS-9 level. Regarding her
own GS-7 level rating by HRS, Complainant referenced arbitration testimony
by HRS that his failure to consider her master’s degree was an oversight
and that he should have rated her at a GS-11 level.
Fourth, Complainant argued that management did not provide a legitimate
reason for interviewing C1 when he did not submit any KSAs. Specifically,
Complainant asserted that Agency policy states that KSAs were required to
receive an interview. In addition, Complainant asserted, “A reasonable
person viewing the evidence and testimony could clearly see all the
major players in the game are Caucasian and that an African-American
was thrown into the effort to cover their tracks.”
In response, the Agency contended that Complainant essentially made two
arguments on appeal: (1) the Selectee’s KSAs could not and should not
have scored higher than her KSAs, because the Selectee’s KSAs were
not job-related due to the Selectee’s lack of prosthetics experience;
and (2) she should have been found to be eligible at the GS-11 level,
and thus should have been interviewed. Regarding Complainant’s first
argument, the Agency asserted that the vacancy announcement reflects
that a majority of the KSAs were general and did not require prosthetics
experience. In addition, even if prosthetics experience was required
for some of the KSAs, the Agency asserted that the Selectee indicated
in her KSAs that she had experience with some types of prosthetics, such
as 24-hour and 48-hour holter monitors, pacemakers, and defibrillators.
Regarding Complainant’s second argument, the Agency asserted that
Complainant would not have been qualified at the GS-11 level and thus
still would not have received an interview. Specifically, the Agency
asserted that, because she had a master’s degree and was a GS-6 at
the time of her non-selection, Complainant would not have been graded
at higher than a GS-9 based on either her education or her experience.
In addition, the Agency asserted that, even if Complainant had been
found to be eligible at the GS-9 level, it would have made no difference
in the outcome. The Agency noted that, as the AJ pointed out in his
decision, the GS-9 candidates fared no better than the GS-7 candidates
in terms of receiving interviews. Further, the Agency asserted that,
although the Board eventually graded the Selectee at a GS-9 level, HRS
properly graded the Selectee at the GS-11 level because she was working
as a GS-10 Medical Instrument Technologist at the time of her selection.
ANALYSIS AND FINDINGS
Standard of Review
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. Nat’l Labor Relations Bd.,
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 EEO MD-110, Ch. 9, at § VI.B.
Disparate Treatment
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 she 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). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804
n.14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty. 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, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
519 (1993). At all times, Complainant retains the burden of persuasion,
and it is her obligation to show by a preponderance of the evidence that
the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Upon review, we find that substantial evidence in the record supports the
AJ’s decision. Assuming, arguendo, that Complainant established a prima
facie case of discrimination on the bases of race and reprisal, we agree
with the AJ that the Agency articulated legitimate, nondiscriminatory
reasons for her non-selection. The AJ found that SO testified credibly
that he based his selection on two criteria: the scores he gave to the
candidates’ KSAs and the scores from the interviews. At the hearing,
SO testified that “[t]he decision as far as who we interviewed was based
on the KSA’s scores.” In addition, with respect to the candidates
on the GS-7 and GS-9 certificates, SO testified that “none of them
scored high enough on KSA’s to warrant an interview.” Further, in
his affidavit, SO attested to the following regarding his scoring of the
KSAs: “There were 5 questions in the KSA’s, each scored on a scale
of zero to five, with five being superior and zero being unacceptable.
[Complainant] scored 1, 1, 3, 1, and 1 on those five questions, for
a total of 7 points … The [S]electee scored 3, 1, 5, 5, and 3 for a
total of 17 points.”
We also agree with the AJ that Complainant failed to prove, by a
preponderance of the evidence, that the Agency’s proffered reason
was a pretext for unlawful discrimination. In doing so, we note that
the AJ had already addressed many of the arguments Complainant made
on appeal. Regarding Complainant’s argument that C1 was given an
interview in order to hide management’s discrimination against her,
we agree with the AJ’s finding that SO’s decision to interview C1
was not indicative of discrimination. Specifically, the AJ found that
SO believed that, if he interviewed one person from C1’s certificate,
he was obligated to interview C1. SO testified at the hearing, “Because
when one person on a certificate is interviewed it’s my understanding
that everyone on the certificate would then need to be interviewed.
So one person on the certificate [C1] was listed on scored high enough on
the KSA’s to warrant an interview, thus everybody on that certificate
was interviewed.” Aside from her bare assertions, Complainant has
provided no evidence that SO’s decision to interview C1 was based on
discriminatory animus.
Regarding Complainant’s argument that SO erred in scoring the
Selectee’s KSAs higher than her KSAs because the Selectee’s KSAs
were unrelated to prosthetics, we find that the record does not support
such an argument. The vacancy announcement reflects that KSAs 1, 4,
and 5 dealt with other qualifications and only KSAs 2 and 3 specifically
mentioned prosthetics. In addition, the record reflects that the Selectee
did have prosthetics experience and did discuss that experience in
addressing KSAs 2 and 3. For KSA 2, the Selectee wrote, “The cardiology
department performs several different procedures on a daily basis this
involves prosthetic devises such as 24 hour and 48 hour holter monitors,
pacemakers, defibrillators. As manager, I was responsible for ensuring
all clinicians were informed and trained on selection and application [of]
the various prosthetic devices used within the section.” For KSA 3,
the Selectee described her experience working with stent manufacturers as
the point of contact within the cardiology department. We note SO’s
testimony at the hearing that the Selectee “worked in cardiology and
pacemakers and st[e]nts in cardiology are considered prosthetic items.”
Regarding Complainant’s argument that her qualifications are far
more superior to those of the Selectee, the record supports the AJ’s
finding that the difference in qualifications between Complainant and the
Selectee were not of such significance that a reasonable employer would
have found Complainant to be significantly better qualified for the job.
Complainant’s argument focused on the following: (1) although HRS
rated the Selectee at a GS-11, the Selectee’s qualifications warranted
only a GS-9 rating, as evidenced by the Board’s decision; and (2)
although HRS rated her at a GS-7, her qualifications warranted a GS-11
rating, as evidenced by her master’s degree and HRS’ testimony
in the arbitration hearing that he should have rated her at a GS-11.
The record reflects that, at the time of her non-selection, Complainant
was a GS-6 and had a master’s degree in Legal and Ethical Studies.
Thus, according to the grade determination criteria listed in the vacancy
announcement and assuming that Complainant’s master’s degree was
in a business or medical field, Complainant would have qualified as
a GS-9 because of her master’s degree. Complainant, however, would
not have qualified as a GS-11 because she did not have one year of GS-9
experience or a Ph.D. In contrast, the record reflects that, at the time
of her selection, the Selectee was a GS-10. Thus, according to the grade
determination criteria listed in the vacancy announcement, the Selectee
would have qualified as a GS-11 because she had one year of experience
as a GS-9. In non-selection cases, a complainant may establish pretext
by showing that her qualifications are “plainly superior” to those
of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Based on the above, we agree with the AJ that Complainant has failed to
make such a showing.
Accordingly, we find that substantial evidence in the record supports
the AJ’s decision that Complainant has not proven that, more likely
than not, the Agency’s articulated reason for her non-selection was
a pretext for race and reprisal discrimination.
CONCLUSION
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 order.
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:
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
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
____8/4/11______________
Date
1 The record reflects that Complainant filed a grievance regarding her
non-selection. The AJ admitted as a hearing exhibit an arbitrator’s
April 10, 2009 decision and award in favor of Complainant. Complainant
was promoted retroactively to the position.
2 29 C.F.R. § 1614.403(d) provides that any statement or brief filed
on behalf of a complainant in support of the appeal must be submitted
to the Office of Federal Operations within 30 days of filing the notice
of appeal. The record reveals that, in addition to her statement filed
with her September 18, 2009 notice of appeal, Complainant submitted
additional statements on October 22 and November 6, 2009. The Commission
declines to consider Complainant’s additional statements, as they were
untimely pursuant to 29 C.F.R. § 1614.403(d).
3 Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), Ch. 9, at § IV.A. (Nov. 9, 1999) provides that the
Commission has the discretion to only review those issues specifically
raised on appeal. We note that Complainant did not raise the dismissal
of claim 2 on appeal. Accordingly, we exercise our discretion and will
not address the dismissal of claim 2 in this decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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