01a02709
09-27-2000
Valencia Sketers, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Valencia Sketers v. Department of Veterans Affairs
01A02709
September 27, 2000
.
Valencia Sketers,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02709
Agency No. 98-0601
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's decision
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.<1> Complainant alleged that she
was discriminated against on the basis of race (African-American) when
on October 3, 1997, she was not promoted to the GS-7 Lead Personnel
Assistant position.
Complainant, a GS-6 Personal Actions Clerk at the Ft. Howard facility
of the agency's Maryland Health Care System, applied for the GS-7
Lead Personnel Assistant position, but was not selected. She sought
EEO Counseling and filed a formal complaint that the agency accepted
for investigation. At the conclusion of the investigation, the agency
informed complainant of her right to request a hearing before an EEOC
Administrative Judge or to receive a final decision from the agency.
When complainant failed to respond, the agency issued its final decision
finding no discrimination.
In its decision, the agency concluded that complainant established
a prima facie case, but failed to show that the agency's legitimate
nondiscriminatory reason was a pretext for discrimination. Specifically,
the agency found that it had the authority to fill the position through
means other than the merit promotion process, and that it hired the most
qualified individual through a noncompetitive reassignment. The agency
found no evidence to contradict or question this finding. The agency
also noted that complainant was promoted to a different GS-7 position
shortly after her nonselection.
On appeal, complainant concedes that lateral transfer and noncompetitive
reassignment were permissible, but argues that the agency failed
to follow the procedures required for reassignments. Specifically,
complainant contends that neither of the individuals selected for the
Lead Personnel Assistant position applied for the position; and neither
individual submitted proper notification of their application to transfer
into the position. Further, complainant notes that all of the individuals
certified as eligible for the promotion were African-American, but both
selectees were Caucasian.
BACKGROUND
On August 15, 1997, the agency posted a Merit Promotion Announcement
for a GS-7 Lead Personnel Assistant and complainant applied. After the
agency closed the vacancy announcement, but before issuing a certified
list of candidates, a Caucasian GS-7 employee with fifteen years of
experience (Person-1) informally requested a transfer to the position.
Person-1 never submitted a formal application for the position.
The selecting official found that Person-1, already at the GS-7 level,
was the most qualified candidate, and selected her for the position.
Days before Person-1's transfer to the position, she declined the job
offer. After Person-1 declined the job, a certificate of eligibles was
issued and complainant was listed on the certificate.
Meanwhile, the immediate past incumbent of the Lead Personnel Assistant
position, also a Caucasian GS-7 employee (Person-2), called the selecting
official to discuss another position available in the same office.
Person-2 applied for the other position, but not for the Lead Personnel
Assistant position. The selecting official asked Person-2 if she would
be interested in returning to the Lead Personnel Assistant position,
and she expressed interest. The selecting official offered the Lead
Personnel Assistant position to Person-2 after Person-1 declined, and
Person-2 accepted the offer.
Person-2 admits that she did not apply through the merit promotion
announcement, but was non-competitively reassigned by the selecting
official. The selecting official claims that the selection of Person-2,
and her acceptance of the offer, effectively canceled the promotion
announcement. Further, the selecting official found that Person-2,
who already possessed a GS-7 and experience in the job, was the most
qualified individual to fill the vacancy.
ANALYSIS AND FINDINGS
The Commission agrees that complainant established a prima facie case.
Complainant is a member of a protected class, she applied and was
qualified for the position, she was not selected, and someone from outside
her protected class was selected. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Then the burden of production shifts; the agency
must articulate a legitimate nondiscriminatory reason for its actions.
See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254
(1981).
The agency met its burden of production. It claims to have selected
Person-1, and then Person-2, because they already held the grade
required for the vacancy, and they were more qualified than any other
applicants. The agency argued that it was not required to fill the
vacancy through merit promotion, and was allowed to fill the position
through non-competitive reassignment or lateral transfer.
Once the agency articulates a nondiscriminatory reason for its action,
then complainant must prove by a preponderance of evidence that the
agency's reason �w[as] not its true reasons, but w[as] a pretext
for discrimination.� St. Mary's Honor Center v. Hicks, 509 U.S. 502,
507-508 (1993). Although the burden of production shifts back and forth,
the ultimate burden of proof remains with complainant. See Burdine,
supra at 253.
The Commission finds that selecting the most qualified individual is
a legitimate nondiscriminatory reason for its actions. Cf. Williams
v. Department of Education, EEOC Request No. 05970561 (August 6,
1998) (finding no discrimination where complainant failed to prove his
qualifications were �observably superior� to those of other applicants).
Complainant failed to prove the agency's explanation for the selection
was a pretext for discrimination.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 27, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.