Mirta L.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJun 20, 20180120161537 (E.E.O.C. Jun. 20, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mirta L.,1 Complainant, v. Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120161537 Agency No. 200P03392015100318 DECISION On March 2, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 8, 2016, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Veterans Service Representative (VSR), GS-0998-10 at the Agency’s Denver VA Regional Office (VARO) facility in Lakewood, Colorado. A GS-13 Supervisor Coach served as Complainant's first-level supervisor (S1). The GS-13 Assistant Veteran Service Center Manager served as Complainant's second-level supervisor (S2). The GS-15 Veteran Service Center Manager served as Complainant's third-level supervisor (S3). S1, S2, and S3 were named as Responsible Management Officials (RMOs) in this complaint. On November 10, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and age (51) when: 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. 0120161537 2 1. on September 5, 2014, she was not selected for the position, of Veterans Service Representative (VSR) Rater, GS-0886-8/10/11, advertised under Vacancy Announcement No. 339-14-026-JG-1163506, and 2. on October 28, 2014, she was not rated as qualified for the position of Program Specialist (Records Management Officer) GS-0301-11, advertised under Vacancy Announcement No. 339-14-042-JG-1222306. After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission 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 failed to prove that the Agency subjected her to discrimination as alleged. With respect to Claim 1, the Agency found that around June 2014, the Agency advertised a vacancy for a Veterans Service Representative (Rater), GS-0996-9/10 (promotion potential to a grade GS-12), under Vacancy Announcement No. 339-14-02&JG-1121141. In July 2014, the Human Resources Center (HRC) cancelled the vacancy. The cancellation occurred after interviews were concluded and selections were made. Complainant stated that she was not one of the selectees. The record indicates that the initial job offers were rescinded and all applicants were required to reapply for the VSR position under the new vacancy announcement. The Agency advertised a new vacancy for a Veterans Service Representative (VSR), GS-0996- 9/10/11 (promotion potential to a grade GS-12) under Vacancy Announcement No. 338-14-033- JG-1163506. The Agency found that it interviewed 15 applicants, including Complainant, for the VSR position. The record showed that seven applicants were selected for the job, all were Caucasian and all but one was under age 40. The selectees’ scores ranged from 46.5-54.5 points. Seven unsuccessful applicants rated between 29.5 and 41 points. Complainant’s score was 19 points and was the lowest. The interview panel was comprised of two individuals: A Coach from the Core-2 Team, GS-13 (Panel Member (PM) 1) and an Assistant Coach, Special Operations, Non-rating Team (PM2). PM1 and PM2 scored the applicants. PM1 stated that Complainant did not interview well. PM1 stated that in the interview Complainant did not attempt to answer the questions. PM2 also stated that Complainant only provided one or two sentence responses to each of the interview questions, and that she failed to elaborate on her answers to the extent that the other applicants elaborated. PM2 also noted that at the end of the interviews, each applicant was given an opportunity to ask questions and provide a verbal argument as to why they should be selected for the position; however, Complainant did not ask any questions and declined the opportunity to provide an argument for why she should be selected. During the investigation, Complainant confirmed that she didn't put forth any effort in the interview. S2 served as the selecting official for the position. S2 stated that each applicant’s score was based on their resume, interview, and writing sample. S2 stated that the score was based 0120161537 3 specifically on: whether the resume reflected the requirements for the rating job; whether the applicants answered all interview questions and provided examples when questions were asked versus generalities; and whether the writing sample was grammatically correct, error-free, and answered the question posed. S2 stated that he selected the applicants with the highest scores. The Agency found that Complainant proffered no evidence, beyond her subjective belief, that her nonselection for the VSR job was discriminatory. The Agency observed that Complainant admitted that she did not make a great effort in the interview and that she did not produce any evidence demonstrating that her credentials and experience were significantly superior to the selectees’ credentials or experience. As for Claim 2, Complainant asserted that being found unqualified for the Program Specialist position was discriminatory. The Agency considered the statement of a Supervisory Human Resource Specialist (SHRS1) who explained that one of his employees who is no longer with the Agency determined that Complainant was not qualified for the position. SHRS1 said that he reviewed Complainant’s application and noticed that there were notes indicating that Complainant did not meet the specialized experience for a GS-0301-11 position. SHRS1 said he then reviewed Complainant’s resume and determined her not to be qualified based on her resume. To verify this conclusion, SHRS1 had another SHRS review Complainant’s application and the specialized experience. The other SHRS confirmed that Complainant did not qualify for the position. The Agency determined that this was a legitimate, nondiscriminatory reason for not selecting Complainant and that Complainant failed to show this reason was a pretext for discrimination. 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). Regarding Claim 1, we find that Complainant did not proffer any evidence refuting the interview panel’s evaluation of the applicants or demonstrating that management’s nonselection of Complainant for the VSR position was discriminatory. Complainant makes no argument regarding Claim 2 on appeal. Additionally, assuming Complainant did not abandon Claim 2 on appeal, we find no basis for setting aside the Agency’s determination that Complainant lacked the specialized qualifications for the Program Specialist position. We find that Complainant failed to show that the Agency’s legitimate, nondiscriminatory reasons for its actions were a pretext for discrimination. 0120161537 4 CONCLUSION We AFFIRM the Agency’s decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 0120161537 5 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 June 20, 2018 Date Copy with citationCopy as parenthetical citation