01A12601
06-11-2002
Esther M. Rose, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Esther M. Rose v. Department of Veterans Affairs
01A12601
June 11, 2002
.
Esther M. Rose,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A12601
Agency No. 2003687
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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 accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Medical Clerk/Coder, GS-5, at the agency's Medical Center
in Temple, Texas. Complainant sought EEO counseling and subsequently
filed a formal complaint on January 28, 2000, alleging that she was
discriminated against on the basis of race (Black) when, on September
23, 1999, she was not promoted to the position of Medical Administration
Specialist, GS-301-7, Vacancy Announcement #99-91.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a FAD. It is from this FAD that
complainant now appeals.
In its FAD, the agency concluded that complainant established a prima
facie case of race discrimination. However, the FAD additionally
concluded that the Selecting Official (S1) stated a legitimate,
nondiscriminatory reason for his action. Specifically, S1 had to
consider several well-qualified candidates, and complainant and selectee
were equally well qualified. S1 chose the selectee based on his �gut
reaction� to her interview responses, which in his opinion were good.
S1 considered selectee to be the �best fit� for the position. The FAD
concluded that complainant failed to establish that S1's reasons are
pretextual. Complainant makes no new contentions on appeal. The agency
requests that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD 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). Applying the standards set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), we find that complainant established
a prima facie case of discrimination in that she was qualified for the
position in question, however an individual outside of her protected
class was selected instead of her.
We now turn to consideration of the agency's legitimate,
non-discriminatory reason for its actions. S1 asserts that he did
not interview the candidates because he had already interviewed them
in the past when they applied for the same position, and he still had
the notes he had taken. See Record of Investigation (ROI), Exhibit B-2,
p. 16-24. S1 states that, as part of the selection process, he reviewed
the responses to the interview questions. Id. S1 additionally states
that this was a very difficult decision for him since there were several
well-qualified candidates, including complainant and the selectee.
Id. at p. 18. S1 asserts that the selectee did well in terms of her
responses to the interview, and submits, in support of such contention,
notes that he took previously during an interview with the selectee for
a previous interview on which he had written �Good answer, team player.�
In a letter to complainant dated September 24, 1999, S1 states: �it came
down to the applicant selected is working in a setting very close to
the AOD work setting.�<1> See ROI, Exhibit A-2b, p. 6. S1 also states
the following as a reason for selecting the selectee: �I could only
select one person and I had to go with my gut feeling that I thought
[the selectee] would be the better one.� ROI, Exhibit B-2, at p. 18.
We find that the agency has met its burden of articulating a legitimate,
nondiscriminatory reason for its action.
In an attempt to establish that the agency's reasons are pretextual,
complainant contends that she wrote a letter to S1 asking what she
needed to do in order to improve for the next time there was a vacancy.
She states that she never received a direct reply to this question.
Complainant also contends that there are no Black individuals in the
position of Medical Administration Specialist. We find that complainant
has not established, by a preponderance of the evidence, that S1's
reasons are pretext for discrimination based on race.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
June 11, 2002
__________________
Date
1 The record reveals that �AOD� refers to a Medical Administrative
Officer position, such as the position at issue in the instant complaint.