01970273
03-17-1999
Lois S. Strome, Appellant, v. Togo D. West, Jr., Secretary, Dept. of Veterans Affairs, Agency.
Lois S. Strome, )
Appellant, )
) Appeal No. 01970273
v. ) Agency No. 95-0848
) Hearing No. 340-95-3689X
Togo D. West, Jr., )
Secretary, )
Dept. of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning
her allegation that the agency violated Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq.; and Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960, as amended.
The issue presented is whether appellant proved, by a preponderance of
the evidence, that she was discriminated against on the bases of race
(White), sex (female), physical disability (hearing loss), and reprisal
(prior EEO Activity) when:
1) she was not selected for the position of Associate Chief, Nursing
Service/Nursing Home Care (ACNS/NHC) on November 2, 1993; and
2) she was not selected for the position of Associate Chief, Nursing
Service/Ambulatory Care (ACNS/AC) on December 9, 1993.
At the time of her complaints, appellant had previously been employed as
a Nurse Researcher in Gerontology at the agency's Sepulveda, California,
Medical Center, but had left to pursue a Master's Degree in Nursing
with emphasis in Gerontology and Nursing Education. She then applied
for the above-referenced positions but was not selected for either.
Believing that she was a victim of discrimination, appellant sought EEO
counseling and later filed two formal EEO complaints dated December 13,
1993, and March 27, 1994.
The agency accepted the above two complaints, consolidated them for
processing, and complied with all procedural and regulatory prerequisites.
On August 2, 1996, the EEOC Administrative Judge (AJ) issued a Recommended
Decision (RD) finding no discrimination on any basis. The AJ found that
appellant failed to establish a prima case in regard to the ACNS/NHC
position because no selection was ultimately made. While the AJ found
that appellant established a prima facie case for the ACNS/AC position,
he also found that she was not the most qualified, since another candidate
with a higher ranking score was chosen. Subsequently, the agency adopted
the RD as its own final decision, and appellant filed the instant appeal.
On appeal, appellant's attorney contends that the explanation of the
Chief of Nursing Service (CNS) that appellant was not chosen for the
ACNS/NHC position because she lacked leadership experience, in that
she had never been a supervisor or head nurse, was a pretext to mask
discrimination, since appellant had five years of
experience as nurse in charge of the evening tour. He further contends
that the Nursing Home Supervisor (NHS) had been, in effect, the acting
ACNS/NHC since the incumbent left in 1992, and noted that she was so
regarded by the Personnel Department, which gave her that title in a
1994 document. Appellant's attorney argues that the CNS manipulated
the selection process so that she could keep the NHS in the position
even though the latter lacked the required Master's Degree and was
never formally chosen for the position. The agency did not reply to
appellant's contentions on appeal.
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We therefore discern no
basis to disturb the AJ's finding of no discrimination.
In this regard, we find that the CNS testified credibly that a �charge
nurse� can be any staff nurse who happens to be working on the evening
tour, but that the ACNS/NHC position required experience as a head nurse
or supervisor, positions that demonstrated real leadership and increasing
responsibility. We also note that the Social Work Section Chief,
who was a member of the selection panel, testified that appellant was
ranked as the lowest of the candidates because she was weak in leadership
and administrative skills and that the panel did not recommend anyone
because the only person they were interested in declined the position.
We further note that the CNS credibly testified that the duties of the
NHS did not change when the ACNS/NHC position became vacant, as contended
by appellant. As for the ACNS/AC position, the former Chief of Ambulatory
Care and Education Programs, a panel member who conducted interviews
for the position, testified credibly that the selectee had the highest
rating from every one of the panel members. He noted that the selectee
had shown exceptional ability in an administrative leadership capacity,
an area where appellant was weakest.
It is accordingly the decision of the EEOC to AFFIRM the agency's final
decision in this matter.
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. �l6l4.604(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:
March 17, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations