0120070869
05-22-2008
Graciela McDaniel, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Graciela McDaniel,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070869
Agency No. 200406412006101065
DECISION
On November 29, 2006, complainant filed an appeal from the agency's
October 31, 2006, final decision (FAD) 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 appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission reverses and remands the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as an Assistant Fiscal Officer, GS-13 at the agency's VA Maryland
Healthcare System in Perry Point, Maryland. On February 21, 2006,
complainant filed an EEO complaint alleging that she was discriminated
against on the basis of national origin (Hispanic) when on January 5,
2006, she learned that she was not selected for the position of Budget
Analyst, GS-0560-13, under Vacancy Announcement No. 06-013.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). The record reflects
that on September 26, 2006, complainant requested that the agency issue
a FAD. In accordance with complainant's request, the agency issued
a FAD pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant
failed to prove that she was subjected to discrimination as alleged.
On appeal, complainant argues that she did not understand that she
was required to choose between a FAD or a hearing before an EEOC AJ.
The agency requests that the Commission affirm its FAD.
At the outset, we find that complainant was clearly notified by the
agency of the requirement that she elect either a FAD or a hearing.
See Letter of Acceptance, dated March 15, 2006; and Notice of Rights
and Responsibilities, mailed January 25, 2006. We, therefore, decline
to remand the case for a hearing.
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); EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (EEO MD-110).
We note that the Commission's regulations require agencies to develop
a complete and impartial factual record. 29 C.F.R. � 1614.108(b);
EEO MD-110, Chapter 6, page 6-1.
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 he or
she 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).
To establish a prima facie case in a discriminatory nonselection claim,
complainant must show: (1) she is a member of a protected group; (2)
she applied and was qualified for the position; (3) she was considered
for and denied the position; and (4) another person, not a member of
her protected group, was selected for the position. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03. Generally, complainant may also set
forth evidence of acts from which, if otherwise unexplained, an inference
of discrimination can be drawn. Furnco Construction Corp. v. Waters,
438 U.S. 557, 576 (1978).
In the present case, we find that complainant established that she is
a member of a protected class based on her Hispanic national origin;
she was subjected to an adverse employment action when she was not
selected for the position at issue; and she was treated less favorably
than others outside of her protected class because the record shows
that the selectee was Caucasian. We further find that complainant was
similarly situated to the selectee since the record reflects she was
referred to the selecting official (SO) for consideration.
Turning to the agency's burden to articulate a legitimate,
non-discriminatory reason, the record reflects that the SO stated that
he did not select complainant for the position because she lacked the
requisite budget experience. Specifically, the SO stated that "current
budget experience" was the principal factor in making the selection and
that the selectee had current budget experience while complainant did not.
The SO stated that the selectee had performed as a Budget Analyst for
two years prior to the selection and did not supervise staff. While
during the four years prior to the selection, complainant performed
as an Assistant Financial Officer, which involved administrative and
supervisory duties but did not include Budget Analyst duties.
Since we find that the agency articulated a legitimate, nondiscriminatory
reason, the burden returns to complainant to prove that the agency's
reason was a pretext for discrimination. Here, however, we find that
the investigative record is incomplete.
The Report of Investigation reflects that in a letter dated March 15,
2006, the investigator informed the agency that certain documentation was
required and the failure to produce such documentation could result in an
adverse inference or sanctions by the Commission. In a separate letter,
dated September 7, 2006, the investigator again requested the agency
to produce relevant documentary evidence in this case. Specifically,
the investigator requested that the agency produce, among other things,
the applications of complainant and the selectee and any relevant
documentation such as the certificate of eligible candidates and any
notes taken by the selecting official for inclusion in the record.
The record reflects, however, that the agency failed to do respond or
produce any of the requested documentation.
We find that the aforesaid evidence is relevant to the issues in this case
since complainant argues that her qualifications are superior to those
of the selectee. Specifically, complainant stated in her affidavit that
she had more working Budget knowledge and experience than the selectee
since she was a "VISN Budget Analyst for approximately 3 years, was
a Fiscal Officer for approximately one year and an Assistant Fiscal
Officer for 4 years." Complainant also stated that she had "over 15
years experience in the VA fiscal arena" and was performing some of the
duties of the GS-13 Budget Analyst position at the time the previous
Budget Analyst retired.
Without the candidates' applications and any relevant notes or other
documentation from the selection process, it is impossible to determine
whether complainant established that her qualifications are superior.
Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). The Commission's
regulations require an employee of a federal agency to produce documentary
and testimonial evidence as the investigator deems necessary. 29 C.F.R. �
1614.108(c)(1). Where an agency fails without good cause to respond
fully and in a timely fashion to requests for documentation, records,
or comparative data, and where the investigator properly advised the
party that a failure to comply with the request could result in an
adverse inference or sanctions, the Commission on appeal may draw an
adverse inference that the requested information would have reflected
unfavorably on the party refusing to provide the information. 29 C.F.R. �
1614.108(c)(3)(i); EEO MD-110 at 6-23. The Commission may also consider
the matters to which the requested information pertains to be established
in favor of the opposing party. 29 C.F.R. � 1614.108(c)(3)(ii).
Here, as a result of the agency's failure to respond to the investigator's
requests, the Commission sanctions the agency by drawing an adverse
inference that the requested information would have reflected unfavorably
on the agency. We note in this regard complainant's testimony that she
had more working Budget knowledge and experience than the selectee since
she was a "VISN Budget Analyst for approximately 3 years, was a Fiscal
Officer for approximately one year and an Assistant Fiscal Officer for
4 years." Accordingly, the Commission infers that complainant would have
been able to substantiate her contention that she was better qualified
for the position than the selectee. Therefore, we find that complainant
established that the agency's reasons for not selecting her for the
position were a pretext for national origin discrimination.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that
complainant established by a preponderance of the evidence that she
was discriminated against on the basis of national origin when she was
not offered the position of budget analyst. Accordingly, the agency's
decision is reversed and this matter is remanded. The agency is required
to comply with the order below.
ORDER
Within sixty (60) days from when this decision becomes final:
1. The agency shall offer complainant the position of Budget Analyst,
GS-13, or a substantially similar position from the date of the selection
of selectee to the date complainant accepts or declines the position.
Complainant shall have 15 days from receipt of the offer to accept or
decline the offer. Failure to accept the offer within 15 days will be
considered a declination of the offer, unless the complainant can show
that circumstances beyond his control prevented a response within the
time limit.
2. The agency shall determine the appropriate amount of back pay with
interest and all other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The complainant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
3. The agency shall conduct training for all management officials
involved in this case regarding their obligations under Title VII,
with an emphasis on national origin discrimination.
4. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
5. The issue of compensatory damages is remanded to the agency. The
agency shall conduct a supplemental investigation of the compensatory
damages issue, which shall include as appropriate, seeking submission
of documentation or other evidence from complainant. No later than
sixty (60) days after the agency's receipt of complainant's submission,
the agency shall issue a final agency decision addressing the issues
of compensatory damages. The agency shall submit a copy of the final
decision to the Compliance Officer at the address set forth below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its VA Maryland Healthcare System in
Perry Point, Maryland, copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
____5-22-08____
Date
1 Although complainant alleged discrimination on the basis of race,
identified as Hispanic, the Commission notes that it considers the term
"Hispanic" to denote a national origin group rather than a racial group.
Accordingly, we will analyze complainant's claim as one of national
origin discrimination.
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0120070869
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036