Greta F.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 14, 2018

0120170026 (E.E.O.C. Feb. 14, 2018)

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

Greta F.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120170026

Agency No. 2003-0501-2015103593

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated August 19, 2016, finding no discrimination
regarding her complaint alleging employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq. For the
following reasons, we AFFIRM the Agency’s final decision finding of no discrimination.

BACKGROUND

In her complaint, filed on July 29, 2015, Complainant alleged discrimination based on
disabilities (back injury, post-traumatic stress, learning disability) when on April 20, 2015, she
received notice she was not selected for the position of Inventory Management Specialist, GS-9,
Announcement No. ABQ-15-281-MLM-1340483-BU. After completion of the investigation of
the complaint, Complainant was notified of her right to request a hearing. Complainant
requested a final Agency decision without a hearing. The Agency then issued its final Agency
decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which
Complainant failed to rebut.

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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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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. At the relevant time, Complainant was employed by the
Agency as a Supply Technician, GS-7. Complainant indicated that she applied for the Inventory
Management Specialist, GS-9 position at issue. She was then notified that she was a qualified
candidate and she was interviewed but she was not selected.

The Selecting Official (SO) indicated that she convened two recommending panelists for the
selection process at issue. The panelists stated that three internal candidates, including
Complainant, applied for the position at issue; they reviewed their resume; and they interviewed
all three candidates using a standard matrix and scoring sheet tailored to the position at issue.
The interview scoring sheets reflects that two candidates (selectees) received the highest score of
1 (the lowest score being 5) for all characteristics of the positions (inventory management
experience, confidence and ability, problem solving, communication, customer service,
teamwork, dealing with conflict, dedication to mission, and poise under pressure). Complainant
received the highest score of 1 for inventory management experience, confidence and ability,
communication, and poise under pressure but received a lower score of 2 for problem solving,
customer service, teamwork, dealing with conflict, and dedication to mission. Based on the
foregoing, the panel recommended the two candidates who received the highest scores for the
position at issue to the SO for the position.

The SO indicated that based on the recommendation by the panelists, she selected the selectees,
and not Complainant, for the position. Complainant indicated that after she received the notice
of her nonselection, the SO called her into the SO’s office and told her that she had interviewed
well but was not assertive enough for the position. Complainant stated that she was bothered by
the foregoing meeting and believed that the SO had reviewed her medical folder. The SO denied
she had any involvement in the interview process and it was her practice to meet with
nonselected candidates who worked in her office to explain why they were not selected and
discuss ways they could improve. The SO and the panelists denied having any knowledge of
Complainant’s disabilities at the relevant time.

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It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Furthermore, Complainant failed to show that her qualifications for the
positions were plainly superior to the selectees’ qualifications or that the Agency’s actions were
motivated by discrimination. See Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995). Based on the foregoing, we find that Complainant has failed to show that
the Agency’s action was motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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

February 14, 2018
Date