0120103595
05-14-2013
Theresa E. Davis, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Theresa E. Davis,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103595
Hearing No. 570-2008-00472X
Agency No. 2004-0372-2007103805
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 5, 2010 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Veterans Service Center Representative at the Agency's VA Regional Office in Washington, D.C.
On October 3, 2007, Complainant filed the instant formal complaint claiming that the Agency discriminated against her on the bases of sex (female), race (African American), age (51), and in reprisal for prior protected activity when:
on July 6, 2007, she was notified of her non-selection for the position of Supervisory Veterans Service Representative (Veterans Service Center Manager), GS-996-14, pursuant to Vacancy Announcement No. 07-C393.
Following the investigation of the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On June 24, 2010, the AJ issued a decision by summary judgment in favor of the Agency.
In her decision, the AJ found no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of sex, disability, age and retaliation.1 The AJ further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
In reaching this decision, the AJ found that the evidence gathered during the investigation showed that five candidates, including Complainant (African American female, age 51, with prior EEO activity) were found qualified for the position of Veterans Service Center Manager and were interviewed by an interview panel. The record reflects that the eventual selectee was ranked first by the panel with an overall score of 170 points, while Complainant was ranked fifth with an overall score of 113 points. The Director of the Washington Regional Office (female, age 51, with prior EEO activity), also Complainant's second line supervisor, was the selecting official for the subject position.
The selecting official stated that following the interviews, she chose the selectee (African American male, age 53, with prior EEO activity) for the subject position because she believed he was the best qualified candidate based on his prior work experience and educational background. The selecting official stated that the selectee "held several positions within the VA, rising from Veterans Service Representative to Consultant and Project Manager for various national projects at Headquarters WBA. He has received extensive VSC training to include rating skills and project management training. He has a Master's Certificate in Project Management as well as a VA Level II Certificate in Project Management." The selecting official also stated that the selectee served as Acting Veterans Center Manager in which he exhibited "strong leadership skills in the delivery of benefits and services by working through backlogs and pending inventories. Improvements were noted in various benchmarks for the Veterans Service Center."
Furthermore, the selecting official noted that the selectee "possesses two Master's degrees as well as a PhD in Political Science. One of his Master's degrees is in Business Economics and his Bachelor's degree is in Marketing."
The AJ noted that Complainant had served as a Training Manager and as a Veterans Claim Examiner. With regard to these relative qualifications, the AJ determined that pretext could be demonstrated by showing that Complainant's qualifications were "plainly superior" when compared to those of the selectee. The AJ determined that Complainant did not make such a showing. Complainant asserted that she was disadvantaged in proving her qualifications because she was unable to secure a supervisor's recommendation because the selectee was her supervisor and had applied for the subject position as well. However, the AJ noted that the selectee "provided what limited information he could for the Complainant's appraisal" and that the selecting official had direct knowledge of her work performance.
The Agency, in its final order, fully implemented the AJ's conclusion that no discrimination had been proven. The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination by summary judgment. Complainant has not identified any material facts in dispute which require resolution through a hearing. The AJ's decision properly summarized the relevant facts established during the investigation, and referenced the appropriate regulations, policies, and laws. Complainant did not prove, by a preponderance of the evidence, that the selection decisions made here were motivated by discriminatory animus toward Complainant's race, sex, age or prior protected activity. Significantly, we note that Complainant was of the same race as the selectee, and he was several years older than she. They both had also had prior EEO activity and, in fact, Complainant seems to suggest at some points in the record that the selectee was acting in the position in question before the selection as part of some sort of settlement of a prior complaint. Finally, while the selectee was male, this alone does not establish gender discrimination. The evidence of record fully supports the AJ's determination that Complainant failed to establish that her qualifications were "plainly superior" to those of the selectee or present any other evidence of sex discrimination.
Based on our careful review of the record and consideration of all arguments presented on appeal, the Agency's final order implementing the AJ's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
May 14, 2013
__________________
Date
1 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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