0120083904
03-13-2009
Evelyn M. Porter, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Evelyn M. Porter,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083904
Agency No. 200P-0662-2008-100250
DECISION
Complainant filed an appeal with this Commission from the July 23,
2008 agency decision finding no discrimination.
Complainant alleges 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. Specifically, complainant alleged that the agency discriminated
against her on the bases of race (Black) and color (black) when on
August 21, 2007, she learned that she was not selected for the position
of Patient Flow Nurse Manager.
After investigation, complainant was informed of her right to request a
hearing or for an immediate agency decision. Complainant requested an
agency decision.
Because this is an appeal from a decision issued without a hearing,
the agency's decision is subject to a de novo review by the Commission.
To prevail in a disparate treatment claim, 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 complainant
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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Although the initial inquiry of discrimination in a discrimination
case usually focuses on whether complainant has established a prima
facie case, following this order of analysis is unnecessary when the
agency has articulated a legitimate, nondiscriminatory reason for its
actions. In such cases, the inquiry shifts from whether complainant has
established a prima facie case to whether complainant has demonstrated,
by preponderance of the evidence, that the agency's reasons for its
actions were merely a pretext for discrimination. Id.; see also United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983).
In nonselection cases, pretext may be found when the complainant's
qualifications are demonstrably or plainly superior to the selectee's
qualifications. See Wasser v. Department of Labor, EEOC Request
No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2D, 1037,
1048 (10th Cir. 1981). A finding that one explanation by an agency
for a personnel action is invalid does not mandate a finding that the
act was discriminatory; all the agency's proffered reasons must be
examined. See Pollan v. United States Postal Service, EEOC Request
No. 05891093 (January 19, 1990).
The Commission recognizes that an agency has broad discretion to
set policies and carry out personnel decisions, and should not
be second-guessed by the reviewing authority absent evidence of
unlawful motivation. Burdine, 450 U.S. at 259; Vanek v. Department
of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
The Commission also recognizes that mere length of service does not
make an individual more qualified to meet the needs of the organization
nor does it automatically make an applicant more qualified. McGettigan
v. Department of the Treasury, EEOC Appeal No. 01924372 (February 24,
1993); Ford v. Department of Health and Human Services, EEOC Appeal
No. 01913521 (December 19, 1991).
Although deserving of heightened scrutiny, subjective factors can
legitimately play a part in a selection decision. The Commission has
also noted that an employer has more discretion in selecting management
level employees because the qualities needed to successfully perform in
management positions are not easily quantifiable. See Wrenn v Gould, 808
F.2d 493, 502 (6th Cir. 1987). An employer's stated legitimate reason
for its actions must be reasonably articulated and nondiscriminatory,
but does not have to be a reason that the trier of fact would act on or
approve. Id. While the reasonableness of the employer's decision may be
probative of whether it is pretext, the trier of fact must focus on the
employer's motivation and not its business judgment. Loeb v. Textron,
Inc., 600 F.2d 1003, n. 6 (1st Cir. 1979). An employer is entitled to
make its own business judgments.
In its decision finding no discrimination, the agency found that
complainant had established a prima facie case of discrimination based
on her race and color because complainant applied for and was qualified
for the position and the selectee was White. The agency concluded
that it had articulated a legitimate, nondiscriminatory reason for its
action in not selecting complainant and that complainant had failed to
prove by a preponderance of the evidence that the agency's reason was
pretextual. In so concluding, the agency noted that while complainant
and the selectee were both qualified for the position, the strength of
the selectee's presentation and her responses to the performance-based
interview questions better qualified her for the position. The agency
also noted that the selectee received a higher score than complainant
from the interview panel. The agency indicated in its decision that the
Selecting Official, who was a panel member, had also hired complainant
for a supervisory position prior to the selection at issue.
Upon review, the Commission finds that the agency did not discriminate
against complainant when it failed to select her for the position
of Patient Flow Nurse Manager. The agency articulated legitimate,
nondiscriminatory reasons for its actions and complainant has failed to
show by a preponderance of the evidence that the agency's reasons were
pretext for unlawful discrimination or were motivated by discriminatory
animus.
The agency's decision finding no discrimination is AFFIRMED.
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
March 13, 2009
__________________
Date
2
0120083904
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120083904