Shamika P.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 28, 2016

0120142594 (E.E.O.C. Apr. 28, 2016)

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

Shamika P.,1
Complainant,

v.

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

Appeal No. 0120142594

Hearing No. 490-2013-00078X

Agency No. 200H03202012102363

DECISION

On July 9, 2014, Complainant filed an appeal from the Agency’s June 25, 2014, 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. For the following reasons, the Commission AFFIRMS the
Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Assistant
Manager (GS-14) at the Agency’s Veterans Service Center in Nashville, Tennessee. In August
2011, the Agency issued a vacancy announcement for the position of Supervisory Veterans
Service Representative, GS-15, also known as Manager of the Veterans Service Center.
Complainant applied for the position but before a selection was made, on October 21, 2011,
the position was re-announced. Complainant reapplied for the position but was not selected.
On June 20, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of race (African-American) when she was not selected for the position
of Manager of the Veterans Service Center. At the conclusion of the investigation, the Agency
provided Complainant with a copy of the report of investigation and notice of her right to
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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request a hearing before an Equal Employment Opportunity Commission Administrative Judge
(AJ). Complainant timely requested a hearing and the AJ held a hearing on May 1, 2014, and
issued a decision on June 10, 2014. The Agency subsequently issued a final order adopting the
AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination
as alleged.

ANALYSIS AND FINDINGS

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.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

Here, the Agency explains that Complainant was not selected for the Veterans Service Center
Manager position because she was less qualified than the successful applicant. According to
the selecting official, the Agency regarded Complainant as less qualified because she received
a lower score than the selectee on her application evaluation and because the selectee had
management experience at a VA facility which was larger, with more complex operations, than
the facility where Complainant had worked. Hearing Transcript at 75-76. The AJ found that
these are legitimate, nondiscriminatory reasons for the Agency's actions and that Complainant
failed to show them to be a pretext designed to conceal discriminatory animus.

We conclude that the AJ's findings are supported by substantial evidence. At the hearing, the
selecting official testified concerning the Agency’s analysis of the qualifications of applicants
for the position. The AJ relied on this testimony to support her findings. Complainant
strenuously argues on appeal that the selecting official’s testimony was not worthy of belief for

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various reasons including that: 1) he had a personal bias in favor of the selectee (Complainant’s
Appeal Statement at 9-10); 2) he had made prior inconsistent statements concerning the
selection process (Id at 10-11); and 3) he had sought advice from a coworker who was
subsequently implicated in an unrelated Inspector General investigation. (Id at 14).
Complainant’s argument is misdirected. It is not our function on appeal to assess the
credibility of witnesses. Under the Commission’s regulations, in cases where hearings are
held, that responsibility is reserved to administrative judges. Here, the Administrative Judge
was not persuaded by Complainant’s efforts to impeach the Agency’s witness. We see no
reason to set aside the AJ's findings.2

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we affirm the Agency’s final order fully implementing the AJ’s
decision.

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,
2 To the extent that the complaint asserts a claim that Complainant should have been selected
pursuant to the first vacancy announcement, that claim is unproven. The Agency explains that
the vacancy was reannounced because it had received an insufficient number of applications in
response to the first announcement. This is a legitimate, nondiscriminatory reason for the
Agency’s action. Complainant failed to prove that it was a pretext designed to conceal
discriminatory animus.

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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).

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

April 28, 2016
Date