Jacqueline F. Newbold-Reese, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 17, 2009
0120073324 (E.E.O.C. Nov. 17, 2009)

0120073324

11-17-2009

Jacqueline F. Newbold-Reese, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Jacqueline F. Newbold-Reese,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120073324

Agency No. 200P-0691-2007100240

DECISION

On July 12, 2007, complainant filed an appeal from the agency's June 11,

2007 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. The appeal is deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final decision.

ISSUES PRESENTED

1. Whether an adverse inference should be drawn against the agency because

it failed to provide requested documentation to the EEO investigator

regarding complainant's non-selection for the position of EEO Program

Manager.

2. Whether the agency properly found that it did not subject complainant

to reprisal for prior EEO activity when it failed to select her for two

positions because complainant failed to prove that management officials

knew about her previous EEO activity when she was not selected for a

Technical Writer position, and complainant did not rebut the agency's

non-discriminatory explanations for not selecting her for the EEO Program

Manager position.

BACKGROUND

At the time of events giving rise to this complaint, complainant

worked as a nurse recruiter at the agency's Medical Center in Los

Angeles, California. Complainant has a Bachelor of Science degree

in nursing, law degree, and master's degree in mental health nursing.

Complainant also has previous experience as an EEO investigator, certified

mediator/arbitrator, and final decision writer.

On February 1, 2006, the agency advertised for the position of EEO

Manager, GS-12/13 in the Office of the Director in West Los Angeles,

California. According to the position description, the EEO Program

Manager manages the medical center EEO program and is responsible for

program development, administration, evaluation, and advisory functions.

Complainant submitted an application for the position and was deemed

qualified by the agency, but complainant was not selected for the

position.

On May 26, 2006, the agency advertised for four GS-12/13 Technical

Writer positions. According to the position description, a Technical

Writer serves as a consultant to the Director of Human Resources; acts

as writer-editor in the analysis and evaluation of EEO claims and other

labor cases; conducts legal research required for dispositive motions;

represents the agency at hearings; and, consults with management

regarding legal actions. Complainant applied for a Technical Writer

position on May 31, 2006, and was deemed qualified for the position by

the agency. However, the agency did not select complainant for the

position and selected three GS-12 Technical Writers who worked in the

Human Resources department for promotion to the position pursuant to

the vacancy announcement.

On December 20, 2006, complainant filed an EEO complaint alleging

that she was discriminated against in reprisal for prior protected EEO

activity under Title VII when on June 15, 2006 and September 29, 2006,

she was notified that management failed to select her for the positions

of GS-13 EEO Program Manager and Technical Writer, 06-179 (KP).

In an investigative affidavit, the Director for the Greater Los Angeles

Healthcare Center stated that he was the selecting official for the

EEO Program Manager position and was not aware of complainant's prior

EEO activity at the time he made the selection. He stated that he also

served on the selection panel for the position, along with the Assistant

Regional Counsel (Counsel), Chief of Human Resources, and the Acting

EEO Program Manager. He stated that the panelists developed interview

questions, interviewed the candidates, and individually rated and scored

each candidate. He stated that there were approximately seven or eight

candidates for the position, but only four candidates with the top

scores were invited to have a second interview for the position with

the panelists and senior EEO management.

The Director stated that although complainant was qualified for the

position, she was not invited to a second round of interviews because she

did not demonstrate much knowledge or experience in managing EEO programs

and did not have the equivalent work experience of the candidate that

was selected. He stated that complainant's interview performance was "not

the strongest" because she "failed all the questions" and was unable to

articulate her knowledge and skills in EEO program management. Exhibit

B2, p. 7. He stated that at the end of the interview, complainant

did not have any questions to ask the panelists, which made him think

that she had not thought much about the position. He stated that based

upon the first round of interviews, the panelists achieved a consensus

opinion that complainant was not qualified enough for a second interview.

He stated that after the second round of interviews, the panelists agreed

that the selectee was the best applicant for the position.

The Chief of Human Resources (Chief) stated that he was not aware

of complainant's prior EEO activity at the time of the selections.

He stated that after the applicants for the EEO Program Manager position

were interviewed, the panelists ranked the candidates and referred the

top three candidates to the Director. He stated that complainant was

not referred to the Director because she did not perform well in the

interview, especially with regard to her responses to questions about her

leadership abilities. He further stated that the selectee was already

in a GS-14 or GS-15 position, had experience as a civil rights attorney,

and had a master's degree in Health Administration.

Counsel testified that at the time of the selection, she was not aware

of complainant's previous EEO activity. She stated that the selectee

was chosen for the position because she was the most qualified candidate,

was very bright, communicative, and had identical experience at a larger

agency in a more complex position at a higher grade. She stated that

during the interview, complainant displayed a "flip" attitude throughout

the interview and seemed to be a "little sarcastic." Exhibit B3,

p. 11.

The Acting EEO Program Manager stated that at the time of the

non-selections, he was aware that complainant had two or three pending

EEO complaints. He stated that the panelists asked each candidate the

same six questions during the interviews. He stated that complainant

was not referred to the second round of interviews with the Director

because although she answered the interview questions "reasonably,"

she did not have experience as an affirmative employment officer,

diversity coordinator, or EEO advisor to the director. He stated

that the top candidates demonstrated that they not only knew what the

position entailed, but also showed what they would do with respect to

diversity, affirmative action, and outreach, which are 90 percent of

the job. He stated that the selectee was chosen for the EEO Program

Manager position because she had experience in affirmative action,

diversity, and outreach and was an EEO manager, Alternative Dispute

Resolution coordinator, and manager of a complaint processing unit,

whereas complainant did not have this experience.

Regarding the Technical Writer position, the Chief stated that five

candidates applied for the position, including complainant. He stated

that the applicants were referred to General Counsel because Technical

Writers work for General Counsel, and General Counsel chose its preferred

candidates, who were already on staff as Technical Writers. He stated

that the Counsel decided to only fill three Technical Writer positions

because "there really wasn't any room or budget money" for a fourth

Technical Writer. Exhibit B4, p. 14.

Counsel stated that there were no interviews for three Technical Writer

positions. She stated that although she was part of the selection process

for the positions, she was not the selecting official and did not sign the

certification for the position. Counsel stated that she recommended the

top three applicants based on the order of the names on the certificate

of eligible candidates, but Human Resources made the final decision.

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). In accordance with

complainant's request, the agency issued a final decision pursuant

to 29 C.F.R. � 1614.110(b). The decision concluded that complainant

established a prima facie case of reprisal with respect to the EEO

Program Manager position because the Acting EEO Program Manager knew

about her previous EEO activity, but complainant failed to prove that the

agency's explanations for not selecting her were pretext for reprisal.

With respect to the Technical Writing position, the agency determined

that complainant failed to establish a case of reprisal for this matter

because the selecting officials for this position were not aware of

complainant's previous EEO activity.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the agency improperly found no

reprisal. Complainant contends that the Director, Chief, and Counsel

should have known about her previous EEO activity which resulted in a

settlement agreement on May 2, 2006, because agency policy states that

settlement agreements drafted by the EEO Office will be reviewed by the

Director of Human Resources, Regional Counsel, and the appropriate

Executive Leader prior to submission to the Executive Director.

Complainant further contends that the Director should have known about

the previous EEO activity because the Director is normally informed by

the EEO Manager of all formal EEO complaints filed against the agency.

With respect to the EEO Manager position, complainant argues that the

agency failed to provide ranking/rating sheets and or notes for the

record that indicated how applicants were selected to proceed to the

second round of interviews for the position. Regarding the Technical

Writer position, complainant argues that the agency retaliated against

her because although there were four Technical Writer vacancies, the

agency only filled three of the vacancies. The agency contends that its

final decision should be affirmed because all but one of the management

officials involved in the selection processes did not have knowledge of

complainant's prior EEO activity at the time of the non-selections.

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 EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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). 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.

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case of

reprisal by showing that: (1) he or she engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

he or she was subjected to adverse treatment by the agency; and (4) a

nexus exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

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). Once the agency has met

its burden, the complainant bears the ultimate responsibility to persuade

the fact finder by a preponderance of the evidence that the agency acted

on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993).

EEO Program Manager

In this case, complainant applied for and is qualified for an EEO

Program Manager position, but the agency did not select her for the

position. Complainant previously engaged in EEO activity on February 10,

2006, when she filed an informal EEO complaint in which she alleged that

the Director for the Greater Los Angeles Healthcare Center discriminated

against her on the basis of race and age, which resulted in a settlement

agreement dated May 2, 2006. Complainant was notified that she was not

selected for the position slightly over one month after she entered into

the settlement agreement, which we determine creates a nexus between her

previous EEO activity and her non-selection. Further, although three

of the four selection panelists maintained that they did not know about

complainant's previous EEO activity at the time of the non-selection,

the Acting EEO Program Manager stated that he was aware of complainant's

previous EEO activity. Thus, we find that complainant established a prima

facie of reprisal case for the EEO Program Manager non-selection.

Nonetheless, we also determine that the agency provided legitimate,

non-discriminatory reasons for not selecting complainant. Specifically,

management stated that it did not select complainant for the EEO

Program Manager position because the selectee had previous experience

in affirmative action, outreach, and managing an EEO program, whereas

complainant did not have such experience. Management further stated

that complainant did not articulate her knowledge and skills in EEO

program management during the interview.

Although management officials provided investigative statements in which

they recounted the selection process and explained why complainant was not

selected for a second round interview, we note that the agency did not

provide any copies of the interview notes or rating/evaluation sheets.

Moreover, the agency provided the application of the selectee for the

record, but did not provide the applications of the other three applicants

who were selected to compete at the second round of interviews.

The record reveals that on February 15, 2007, the EEO investigator

asked the agency to produce documentation reflecting how it evaluated

the candidates for the EEO Program Manager position, including interview

notes and any other documentation reflecting the reasons for selecting

the candidate. In a memorandum dated March 5, 2007, Human Resources

informed EEO officials that the interview notes and evaluation sheets for

the EEO Program Manager position "were not preserved," and the record does

not contain the requested documentation. Exhibit A3b, p. 1. We note

that EEOC Regulation 29 C.F.R. � 1602.14 provides that agencies must

preserve any records pertaining to selections and promotions for a period

of one year from the date of the making of the record or the personnel

action, whichever comes later. Moreover, the regulation requires that

once the complaint process is initiated, the agency is required to

retain personnel records until a final disposition of the complaint.

Because the agency has failed to comply with 29 C.F.R. � 1602.14,

we take an adverse inference against the agency and find that had the

missing records been preserved, they would have shown that the agency's

explanations for why complainant was not granted a second interview

were not credible. See Cosentine v. Department of Homeland Security,

EEOC Appeal No. 07A40114 (August 9, 2006)(citing Hale v. Department of

Justice, EEOC Appeal No. 01A03341 (December 8, 2000)).

Nevertheless, even with this adverse inference, the evidence of

record does not establish that complainant was not selected because

of reprisal.1 The record contains a copy of complainant's and the

selectee's applications. At the time of the selection, the selectee was

a GS-14/15 equivalent Equal Employment Specialist Team Leader with Office

of Comptroller of the Currency. In that position, she managed the EEO

pre-complaint and formal process and Fair Alternatives and Innovative

Resolutions program; analyzed EEO complaint reports for the EEO Director;

reviewed EEO investigative files; briefed Senior Deputy Comptrollers and

other executives on EEO cases; drafted policies and procedures governing

alternative dispute resolution; conducted training for EEO counselors and

mediators; and, trained employees on the EEO process. Additionally, the

selectee also worked as the Director of Compliance and Equal Employment

Specialist at United States Customs and Border Protection and Human

Resources System Design Team Member at the Department of Homeland

Security. In these positions, the selectee implemented EEO policies,

analyzed EEO demographics for Affirmative Employment Plans, managed a

National Disability Program, wrote articles on EEO issues, and approved

special emphasis and outreach programs. The selectee has law and Master

of Public Administration degrees.

According to complainant's application, she has experience as a certified

mediator, arbitrator, Civil Service Commission Hearing Officer, EEO

investigator, adjunct professor, conflict management trainer, and final

agency decision writer. We find that the selectee possessed plainly

superior qualifications for the EEO Program Manager position, in light of

her extensive experience and expertise in a broad swath of federal sector

EEO fields, including EEO management, alternative dispute resolution,

EEO training, Management Directive 715 reports, Affirmative Employment

Plans, and special emphasis and outreach programs. While complainant had

experience in mediation, investigations, and final decision writing at

the time of the non-selection, she clearly did not have the broad EEO

or management experience that the selectee possessed for the position.

Consequently, we find that despite the adverse inference that the

agency's explanations are unworthy of belief, we find no persuasive

evidence of reprisal here because the selectee's qualifications for

the EEO Program Manager position are plainly superior to complainant's

qualifications.2 As such, we find no persuasive evidence that the

agency did not select her because of reprisal. See Carey Weathersy

v. Department of the Interior, EEOC Appeal No. 0120061627 (August 16,

2007) (Commission found no discrimination where, even with an adverse

inference for failure to preserve records from the selection process, the

record does not establish that complainant would have been chosen over

the selectee for the position). Thus, we find that the record in this

case does not establish that the agency retaliated against complainant

when it failed to select her for the EEO Program Manager position.

Technical Writer

Complainant applied for a Technical Writer position, and the agency deemed

her qualified for the position. However, the selecting officials asserted

that they were not aware of complainant's prior EEO activity when they

made the selection for this position. Complainant maintains that the

selecting officials should have been aware of her prior EEO activity

because agency policy states that all settlement agreements must be

reviewed by the Director of Human Resources and Regional Counsel before

being submitted to the Executive Director, and a copy of the executed

agreement must be sent to both agency officials. However, while agency

policy and procedure may indicate that both agency officials should have

known about complainant's previous EEO activity because of their jobs,

complainant failed to show that the selecting officials actually knew that

she previously engaged in EEO activity when they made their selections.

Consequently, we find that complainant failed to establish a prima facie

case of reprisal for this claim.

CONCLUSION

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final decision

because the preponderance of the evidence of record does not establish

that reprisal occurred.

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

_____11/17/09_____________

Date

1 In Hicks, the Supreme Court held that a fact finder is not required,

as a matter of law, to find discrimination whenever it finds that

an employer's explanation for its actions is not credible. Id. at

519. The Court, however, made clear that a fact finder might find

discrimination in such circumstances. Id. at 524. The critical factor

is that a fact finder must be persuaded by the complainant that it was

discrimination that motivated the employer to act as it did. Id.

2 In fact, on appeal, complainant acknowledges that she never asserted

that her qualifications were plainly superior to the selectees'

qualifications. Complainant does not argue that selectee would not have

been referred to the second round of interviews.

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0120073324

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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