01a53502
09-26-2005
Tammy J. Furr, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Tammy J. Furr v. Department of Veterans Affairs
01A53502
September 26, 2005
.
Tammy J. Furr,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A53502
Agency No. 200J-0553-2004103584
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Utility System
Repair Operator, WG-10, at the agency's Medical Center in Detroit
Michigan. Complainant sought EEO counseling and subsequently filed a
formal complaint on August 26, 2004, alleging that she was discriminated
against on the bases of national origin (American Indian) and sex
(female) when:
on June 8, 2004, she learned that she was not found to be qualified for
referral for the position of Supervisor, Utility Systems Repair Operator,
WS-10, pursuant to Merit Promotion Announcement #04-418, dated March
19, 2004.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency found no discrimination. The agency concluded that
complainant failed to establish a prima facie case of sex or national
origin discrimination. The agency further found that even assuming that
complainant established a prima facie case of sex and national origin
discrimination, management articulated a legitimate, non-discriminatory
reason for its action. Specifically, the agency found that the selectee
for the Supervisor, Utility Systems Repair Operator was better qualified
than complainant. Further, the agency found that complainant failed to
present any evidence which demonstrated that management's articulated
reason for its actions was a pretext for discrimination.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated a legitimate,
non-discriminatory reason for its employment action. The agency found
that five candidates, including complainant, applied for the position
of Supervisor, Utility Systems Repair Operator, WS-4742-10. The record
contains an affidavit from the Subject Matter Expert (Expert). Therein,
the Expert stated that he was asked by the Human Resources Service to
review the application packages of the five candidates. The Expert
further stated that out of the five candidates, two candidates were
identified as being qualified for the subject position. The Expert stated
that the two candidates were rated as qualified "per the screen-out
element for the referenced vacancy had adequate written documentation
in their KSAO's and Personnel Folders to indicate objective performance
items satisfactory to the Crediting Plan guidelines." The Expert stated
that complainant did not qualify for the subject position because she
"did not meet the minimum required score for the KSAO "Element #73,
Ability to supervise (screenout)." Specifically, the Expert stated
that neither complainant's KSAO nor her Personnel Folder "had adequate
documentation and written evidence of prior supervisory experience that
would qualify for the minimum points needs to be acceptable on this
screenout element." The Expert stated that the Crediting Plan criteria
included the following elements: ordering materials; scheduling jobs;
assigning work loads to co-workers or subordinates on a daily, weekly,
monthly, semi-annual or annual basis; planning work for other employees;
interviewing prospective job applicants; reviewing and inspecting work
of peers, contractors or subordinates; coaching; mentoring or assisting
co-workers or subordinates when appropriate; completing time cards;
and approving leave. The Expert stated that he did not make the final
selection for the subject position. Furthermore, the Expert stated
that complainant's sex and national origin were not factors in his
determination that she was not qualified for the subject position.
Finally, we find that complainant has not demonstrated that the agency's
articulated reasons for its employment actions were a pretext for
discrimination.
Accordingly, the agency's final decision finding no discrimination
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
September 26, 2005
__________________
Date