0720090001
02-25-2009
Robin Maitre, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Robin Maitre,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0720090001
Hearing No. 443-2007-00087X
Agency No. 200J-0592-2006103522
DECISION
Following its October 7, 2008 final order, the agency filed a timely
appeal which the Equal Employment Opportunity Commission (EEOC or
Commission) accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal,
the agency requests that the Commission affirm its rejection of an EEOC
Administrative Judge's (AJ) finding of discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, complainant worked
as a recreational therapist, GS-10. She alleged discrimination based
on her age (42) when she was not selected for the position of health
system specialist, GS-7 (target 12). The position was advertised under
announcement number MP 06-48 as an upward mobility position. The goal
of the position was for the incumbent to serve as the principal advisor
in the area of equal employment opportunity, affirmative employment,
civil rights external programs, and alternate dispute resolution
for the medical center director, management, and employees, and as a
communications specialist, for both internal and external communications.
The announcement advised that the position would involve significant
training on the job and self-development activities on the selectee's
own time.
After an interview panel conducted interviews, it referred three
candidates to the selecting official, the Director of the Veterans Affairs
Central Iowa Health Care System. The referrals were complainant, another
candidate, a histopathology technician, GS-8 (age 40) and the eventual
selectee, a program support assistant, GS-6 (age 27). The selecting
official's selection was effective August 20, 2006. The selecting
official testified that he preferred to select a candidate at a lower
grade and develop the candidate. (H.T. 79, 97 though 99). According to
the counselor's report, the selecting official explained that with all
determining factors for the best candidate being equal, he elected to
give preference to the lower graded candidate. Complainant wrote that
the selecting official explained to her that he felt all things were
equal among the final three candidates, so he chose the lowest graded
one since it was an upward mobility position.
Following an investigation and hearing, an EEOC Administrative Judge
(AJ) issued a decision finding that complainant was discriminated
against based on her age when she was not selected. The decision
characterized the selecting official's reason for his decision as,
everything else being equal, he chose the candidate he believed had the
"most developmental potential." However, the AJ found that the selecting
official's reservations about complainant's developmental potential were
intrinsically linked to her age. Reviewing complainant's background,
the AJ found she stood as much of a chance, if not a better chance,
of being developed as any other candidate,1 and that complainant's
qualifications were plainly superior to those of the selectee.
The agency's final order rejected the AJ's finding of discrimination. On
appeal, the agency argues the following: the interview panel unanimously
favored the selectee (which was based solely on her interview).
Education and prior experience were not selection criteria because the
job was an upward mobility position. The AJ improperly used selection
criteria not used by the agency, i.e., education, work experience,
and collateral duties. It was seeking talent, not experience.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
The AJ's finding of discrimination was supported by substantial
evidence. While the agency focused much of its arguments on appeal on
the motivations of the interview panel, this was somewhat irrelevant
as the panel, in the end, recommended complainant as one of the best
qualified candidates to the selecting official. Therefore, the focus of
analysis must be on the decision made by the selecting official. The AJ's
conclusion that discrimination had occurred turned on the finding that
the selecting official's reservations about complainant's "developmental
potential" was intrinsically linked to her age. While the job was an
upward mobility position, it was open to those at higher grades, like
complainant, who were willing to take a downgrade for the opportunity
for a new career and to progress to the GS-12 level. The AJ's finding
that complainant's background belied the agency's claim that the selectee
was chosen because she had more developmental potential is supported by
substantial evidence.
The agency's final order is reversed, and the AJ's finding of
discrimination is affirmed.
ORDER
The agency is ordered to take the following remedial actions:
1. Offer to place complainant to a mutually agreeable position with
the same promotion potential as the health systems specialist (EEO
Manager/Communications Specialist), GS-671-7 (target 12), which was
advertised under announcement number MP 06-48; or if none is mutually
agreeable, to the health systems specialist, GS-671-7 (target 12),
which was advertised under announcement number MP 06-48 in the VA
Central Iowa Health Care System, at the same duty locations as in the
vacancy announcement. The offer shall be made effective August 20,
2006, within 30 calendar days after this decision becomes final, with
all career ladder promotions complainant would have subsequently been
entitled had she performed in a fully successful manner. Complainant
shall be given a minimum of 15 calendar days from receipt of the offer
within which to accept or decline the offer. Failure to accept the offer
within the time period set by the agency will be considered a rejection
of the offer, unless complainant can show that circumstances beyond her
control prevented a response within the time limit.
2. The agency shall determine and pay the appropriate amount of back
pay, with interest, and other benefits due complainant, pursuant to 29
C.F.R. � 1614.501, no later than ninety (90) calendar days after the
date this decision becomes final. If complainant declines to accept the
promotion, the back pay period shall end on the date she declines the
offer of promotion. The complainant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
3. Train the individual identified herein as the selecting official
on how to identify and prevent employment discrimination under the ADEA
within 120 calendar days after this decision becomes final.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented,
and be copied to complainant.
POSTING ORDER (G0900)
The agency is ordered to post at its VA Central Iowa Health Care System,
Des Moines Campus, copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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
February 25, 2009
__________________
Date
1 The AJ noted, for example, that complainant had a Master's degree in
health care administration and was pursuing further higher education.
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2
0720090001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0720090001