01974966
01-15-1999
Jennifer Jackson, Appellant, v. Togo D. West, Secretary, Department of Veterans Affairs,) Agency.
Jennifer Jackson v. Department of Veterans Affairs
01974966
January 15, 1999
Jennifer Jackson, ) Appeal No. 01974966
Appellant, ) Agency Nos. 95-1814; 95-8145
v. ) Hearing Nos. 110-96-8353X
Togo D. West, ) 110-96-8354X
Secretary, )
Department of Veterans Affairs,)
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. See EEOC Order No. 960.001. In
her complaint, appellant alleged that she was discriminated against
based on her race (Black) when she was not selected for the positions
of Hematology Laboratory Technician, GS-7 (with a target level of GS-9),
and Chemistry Laboratory Technician, GS-7.
Appellant, while formerly at the GS-7 level with the agency, accepted a
position as a GS-5 technician in the Phlebotomy Laboratory. Appellant
and two other internal applicants (all Black) were placed on the best
qualified list for the Chemistry position, but the Head of the Chemistry
Laboratory, after consultation with two other officials, decided not to
select any of the internal applicants on the basis that they were only
minimally qualified. Thereafter, an outside candidate (Caucasian) was
selected from an Office of Personnel Management register. Meanwhile,
the Hematology position became available and, although it had not been
announced, the Hematology supervisor reviewed appellant's qualifications
and spoke with her. When the supervisor indicated that she wished to
select appellant, other officials indicated some reluctance to concur,
and appellant was advised that they intended to fill the position from
the outside. However, the position ultimately was moved to the night
shift and filled with an internal candidate, a Black male.
Appellant timely sought EEO counseling and filed her instant EEO
complaint, which was accepted and investigated by the agency. Thereafter,
appellant timely requested a hearing before an EEOC Administrative Judge
("AJ"). After a hearing, the AJ issued a recommended decision ("RD")
finding no discrimination. The agency adopted the RD in its FAD.
Appellant timely appeals, but does not offer any argument.
While the AJ expressed some concern with the facility's promotion
system, noting that a number of EEO complaints had been filed due
to the facility's poor record of completing paperwork and following
selection procedures, the AJ found that appellant failed to establish
that the agency's articulated reasons for its actions were pretextual.
Appellant acknowledged that she was not as qualified as the selectee for
the Chemistry position, who had 20 years experience and national and
state certifications, while appellant had two years experience and no
national or state certifications. However, appellant contended that the
certification of the three Black applicants was a sham and an attempt to
disguise discrimination and pointed to certain conflicts in the testimony
of various witnesses. However, the AJ found credible the testimony of
the Head of the Chemical Laboratory, who had selected Black applicants in
three of her five hires since becoming a supervisor. The AJ expressed
some doubt about appellant's ability to establish a prima facie case
of discrimination with respect to the Hematology position, in that it
had never been announced and no applicants were recruited through the
investigation of appellant's complaint, and when it was filled just prior
to the hearing on this matter, it was moved to the night shift and filled
by a Black male. In any event, the AJ found that the selectee was more
qualified than appellant and that she failed to establish pretext or that
agency officials were motivated by consideration of appellant's race.
After a thorough review of the record, the Commission finds that the
RD adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. The Commission notes that it generally
will not disturb the credibility determination of an AJ. Esquer v. United
States Postal Service, EEOC Request No. 05960096 (September 6, 1996);
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July
26, 1990). Accordingly, the Commission discerns no basis to disturb
the AJ's finding that appellant failed to establish discrimination.
Therefore, it is the decision of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Jan 15, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations