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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0120073324