0120073172
09-20-2007
Sequaia Williams, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Sequaia Williams,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073172
Agency No. 200H03112005102289
Hearing No. 530200600035X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 29, 2007, final order 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.
Complainant filed a formal complaint on June 3, 2005, claiming
discrimination based on race (black) when she was not selected for one
of three vacancies as Supervisor, Veterans Service Representative,
in April 2005. Following an investigation, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On March 7, 2007, the
AJ conducted a hearing, and, on May 23, 2007, she issued a decision,
finding that the agency did not discriminate against complainant.
The agency adopted the AJ's decision.
At the time of the events herein, complainant worked as a Veterans
Rating Service Representative in Pittsburgh, PA. The agency described
the selection process as follows: There were fifteen candidates
who qualified for the position. The selecting officer (SO) and his
assistant interviewed them, scoring each candidate based on their answers
to the same questions. Afterward, the candidates were asked to submit
post-interview essays. The SO sought input from the supervisors of the
teams. Based on the information garnered, the SO chose three candidates.
The SO stated that he chose the strongest candidates and that complainant
ranked 12 out of 15 in total points.
The AJ found that the agency articulated legitimate, nondiscriminatory
reasons, i.e., the SO considered the interview, experience, education,
performance, and supervisory rankings and chose the strongest candidates.
The AJ concluded that complainant failed to demonstrate pretext or
that she was better qualified, since evidence in the record indicated
otherwise.
On appeal and elsewhere in the record, complainant contended that she was
not selected because she worked at home from 1999, through April 2006,
and was on a performance improvement plan (PIP) in 2004; we note that
working at home and being placed on a PIP are not protected bases.
Also, she contended that it was error for the agency to require an
essay or inquire about the candidates from their supervisors; she did
not explain further, and the record indicates that all employees were
treated the same. Finally, she argued that there were no documents or
evidence in the record of the SO's statements; however, the AJ admitted
the statement.1
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 Supreme Court has previously held that in the absence of evidence of a
discriminatory motivation, an employer generally "has discretion to choose
among equally qualified candidates...." Texas Department of Community
Affairs v. Burdine, 450 U.S. at 259. In addition, an agency manager
has discretion to choose from among applicants who have different, but,
in the manager's opinion, equally desirable qualifications. See Canhan
v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). The Supreme
Court recently addressed the question of comparative qualifications as
evidence of pretext and held that, to demonstrate pretext, the complainant
must show that her/his qualifications were significantly more superior
than those of the selectee. See Ash v. Tyson Foods, Inc., 546 U.S. 454
(2006).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, even those not addressed, it is
the decision of the Equal Employment Opportunity Commission to affirm
the agency's final decision, because the AJ(s ultimate finding, that
unlawful employment discrimination was not proven by a preponderance of
the evidence, is supported by the record.
CONCLUSION
Accordingly, the agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____9/20/07______________
Date
1 The SO retired before the hearing but eventually submitted information
through an agency official, which the AJ accepted. The Commission has
held that its administrative judges have wide discretion in the conduct
of hearings. See 29 C.F.R. � 1614.109 et seq.
??
??
??
??
2
0120073172
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120073172