Enriqueta T.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 5, 2018

0120160167 (E.E.O.C. Mar. 5, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Enriqueta T.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120160167

Agency No. 2003-0657-2014102365

DECISION

On October 15, 2015, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 10, 2015, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Clinical Pharmacy
Specialist (CPS), GS-13, in the Medical Intensive Care Unit (MICU), at the St. Louis Veterans
Affairs Medical Center (VAMC) in St. Louis, Missouri. On May 14, 2014, Complainant filed an
EEO complaint alleging that the Agency discriminated against her based on her race (African-
American) when on March 31, 2014, the Chief of Pharmacy Service (SO) (Caucasian) who was
the selecting official, failed to select her for the position of Pharmacist (Associate Chief of
Pharmacy Service) (ACPS), GS-0660-14, Vacancy Number 1040418.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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After the EEO 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, but subsequently withdrew her request.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

FACTUAL BACKGROUND

The record shows that as a CPS, Complainant provides pharmaceutical care to critically ill
patients in the MICU, attends daily rounds with doctors, recommends medications, and consults
with renal doctors in the Nephrology Department. Complainant was among the six applicants
who qualified for the ACPS position and who were interviewed by a three-member panel
consisting of PM1, PM2 and PM3 (all Caucasian). Ten interview questions were posed to each
qualified applicant for a total possible score of 300 points. The panel awarded one applicant
(SE1) (White) 263 points. Another applicant (SE2) (White) was awarded 235 points.
Complainant received a rating of 199 points. Complainant ranked fifth out of six applicants on
her interview. The selecting official (SO) selected SE1 (i.e., the applicant with the highest
interview score). After SE1 declined to accept the offer, SO selected SE2 (i.e., the applicant
with the second-highest interview score), who accepted the position.

SO testifies that he made the selection decision solely based on the scores of the interview panel,
and he did not direct the panel members to score any applicants higher than others. According to
the rating by the panel, Complainant was not in the running for top scores.

Panel members testified that Complainant’s answers were not as detailed and thorough as other
applicants during the interview, and she did not handle the budgeting, program management, and
procurement questions as well all key requirements for the position. In addition, each panel
member affirms that SE1 and SE2 scored higher than Complainant.

The panel members and SO also testified that race was not a factor in the selection and was not
discussed. PM3 testified that he did not know the race of any applicant because he interviewed
them by phone and did not recognize any of them.

Complainant’s witnesses testified that SO has a history of discrimination against African-
Americans in his hiring and personnel actions through the years in the Pharmacy Department.
The undisputed record shows that SO has not selected an African-American pharmacist in at
least eight years. A Caucasian pharmacist testified that no African-American pharmacists have
been promoted in 20 years in the department. However, none of Complainant’s witnesses had
any involvement or direct knowledge regarding the selection process at issue herein.

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ANALYSIS AND FINDINGS

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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). She must generally 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, 411 U.S.
at 802 n. 13.

The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Tx. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

We agree with the Agency final decision, and find that there is insufficient evidence to support
the conclusion that SO was involved in the interview ratings or communicated with any panel
member with respect to how to rank any applicant. One of the weaknesses in the application
process here is that the KSAs/written qualifications were not assigned objective scoring by the
human resources office prior to the interview scoring process. However, since the overwhelming
evidence shows that both SE2 and Complainant were similarly qualified, we find that the lack of
objective standards is not determinative. In addition, SO asserts that he solely relied upon the
interview scores to make his selection decision, and did not consider the education and
experience of the applicants.

Lastly, the record shows that no panel member was aware of SE1’s race when they ranked her
the highest. We also find insufficient evidence that PM3 was aware of Complainant’s race or
that his evaluation of Complainant was altered by any other interview panel member. Even if we
assume for the purposes of this decision that SO generally held racial animus toward African-
Americans, the record lacks sufficient evidence that the interview panel held such animus or was
directed by SO to rank certain individuals higher than others. Since SO selected the applicants
with the highest scores, we find insufficient evidence of racial discrimination with respect to the
vacancy at issue herein.
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CONCLUSION

Therefore, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s finding that Complainant
failed to prove her claim of discrimination as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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).
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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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 5, 2018
Date