Mana H.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 6, 2016

0120140335 (E.E.O.C. May. 6, 2016)

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

Mana H.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120140335

Hearing No. 430-2012-00042X

Agency No. 2004-0318-2012101645

DECISION

Complainant filed an appeal from the Agency’s final order dated September 24, 2013, finding
no discrimination with regard to her 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.
For the following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In her complaint, dated May 8, 2012, Complainant alleged discrimination based on race
(Black), sex (female), and in reprisal for prior EEO activity when on January 13, 2012, she
was informed she was not selected for the position (five vacancies) of Decision Review Officer
(DRO) (Ratings/Appeals Quality Review Specialist), GS-0930-13, vacancy announcement 318-
12-97-RU573032. Upon completion of the investigation of the complaint, Complainant
requested a hearing before an Equal Employment Opportunity Commission Administrative
Judge (AJ). On September 4, 2013, the AJ issued a decision without holding a hearing,
finding no discrimination. The Agency’s final order implemented the AJ’s decision.

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

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists. Moreover, despite Complainant’s contentions on appeal, we find the
record was fully developed.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. During the relevant time period at issue, Complainant
was working as a Rating Veterans Service Representative at the Agency’s Regional Office in
Winston-Salem, North Carolina. Complainant applied for the DRO at issue in December,
2011, but was not selected. The Agency indicated that the DRO was an internal promotion
only open to Agency employees at the Winston-Salem duty location.

The Agency indicated that its Human Resources Department conducted an initial screening for
basic qualifications and those qualified applicants were referred to two interview panelists.
The interview panelists indicated that they interviewed ten qualified applicants, including
Complainant, asking the same five performance-based questions and rated the responses; they
reviewed and scored the applicants’ writing sample and appraisals from each applicant’s
supervisor; and they then totaled all of the ratings/scores to produce the final scores ranging
from 29.4 to 36.8. The interview panelists stated that Complainant, although a very good
worker, had difficulty answering the interview questions and did not do well during the
interview; in her writing sample, she did not answer all parts of the question and had
grammatical and spelling errors; and she, and one other applicant, received the lowest final
score of 29.4. The interview panelists stated that they referred the top five highest scored
candidates, ranging from 33.8 to 36.8, to the selecting official who ultimately selected those
candidates.

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Upon review, we agree with the AJ that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reason for not selecting Complainant for the position. Furthermore,
Complainant failed to show that her qualifications for the position were plainly superior to the
selectees’ qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995). Based on the foregoing, we find that Complainant failed to show that the
Agency’s action was motivated by discrimination as she alleged.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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), 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. The requests 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 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

May 6, 2016
Date