0120080997
09-11-2009
Victoria Ashley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Victoria Ashley,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080997
Agency No. 200l-0673-2006100265
DECISION
Complainant filed an appeal with this Commission from the November 20,
2007 agency decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Program Support Assistant (PSA), GS-5, at the agency's James A. Haley
Veterans Affairs (VA) Medical Center in Tampa, Florida.
On December 6, 2005, complainant filed a discrimination complaint
alleging that she was discriminated against on the bases of race
(White/non-Hispanic), national origin (United States/non-Hispanic), age
(57), and in reprisal for prior protected whistleblower and EEO activity
when:
1. On October 14, 2005, she received notification that she was not
selected for a Lead Medical Support Assistant (LMSA) position, GS-679-6,
under vacancy announcement 05-PJ-210.
2. In December 2005, she learned that she was not been selected for an
LMSA position from the same Vacancy Announcement, 05-PJ-210.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation (ROI) and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
requested an agency decision. Subsequently, the agency conducted two
supplemental investigations and provided complainant with the reports.
The record reveals that complainant had worked for the VA Medical Center
for approximately 15 years. At the time of the events giving rise to
this complaint, complainant worked in the Ambulatory Surgery Clinic but
had also worked in other areas of the facility during her career with
the agency.
LMSA positions became available when the Health Administration Service
(HAS), in which complainant worked, was divided into seven units under
seven supervisors. An LMSA position was created for each of the seven
units. The LMSA positions were posted. Qualifying factors listed in
the job description included: the ability to lead three or more Medical
Support Assistants (MSA) and ensure that the MSA's assignments were
efficiently completed; providing on-the-job-training to new employees;
effectively carrying out day-to-day administrative operations of the
clinic; and performing receptionist work, customer service, and other
duties as assigned for the proper and timely treatment of patients.
The Chief of the Patient Scheduling Section (PSS Chief) was responsible
for filling the new LMSA positions. Fifteen applicants, including
complainant, were found qualified for the LMSA positions.
The PSS Chief convened a panel of four MSA Supervisors to interview
the 15 qualified candidates. Complainant's Supervisor was one of the
panelists. Each candidate was asked the same 15 interview questions.
Individual panel members then scored the answers of each candidate on a
scale from 1 to 10. The total score each candidate received from each
panel member was tallied, and those were added together to determine an
interview score for each candidate.
In addition to the interview score, the record reveals that each
candidate's immediate supervisor provided the panel with a supervisory
evaluation of the candidate. The supervisory evaluation score was
added to the interview score. The sum of the interview score and the
supervisory evaluation score was used to rank each candidate.
Complainant's ranking was eleventh out of 15 candidates. Of the seven
selectees, three were African-American, three were White/Hispanic and one
was Asian. Of the 15 candidates, complainant's Supervisor supervised
seven of them at the time of their interviews. Three of the selectees
were supervised by complainant's supervisor.
In December 2005, a second round of interviewing was conducted after a
selectee in Round 1 was laterally transferred to a different job creating
an LMSA vacancy. In Round 2, a new four-member panel re-interviewed
five qualified candidates from Round 1, including complainant. After new
interviews and supervisory evaluation scores were tallied, the top-ranking
candidate, an African-American, was selected.
CONTENTIONS ON APPEAL
On appeal, complainant challenges only the agency's finding of no
discrimination regarding her claims based on race and reprisal for prior
EEO activity.1 She contends that she applied for and qualified for the
LMSA positions and none of the selectees were in her protected group,
i.e., White/non-Hispanic. Complainant also contends that the agency
subjected her to reprisal because she engaged in EEO activity when she
contacted an EEO Counselor in October 2005, and less than two months
following her contact, she was not selected for the LMSA position in
Round 2 of the interviews. Complainant also contends that the PSS Chief,
the selecting official, and the Round 2 panelists were aware of her EEO
activity when she participated in Round 2 interviews.
Regarding pretext, complainant contends that a preponderance of the
evidence contradicts, and also does not support, the agency's explanation
that complainant was not selected because her teamwork and courtesy
skills were lacking and because she did not get along with co-workers at
the level of others selected. In support, complainant asserts that there
were no reports in her personnel records indicating that she could not get
along with co-workers and, further, that she was repeatedly commended for
her courtesy and positive interactions with others, including co-workers.
She also asserts that she had demonstrated positive interpersonal
relationships with co-workers, one of the critical elements of the
positions and one in which complainant excelled. Complainant asserts
that two of her witnesses who worked with her stated that she got along
well with her co-workers.
Complainant asserts that her reduced scores provided by her Supervisor
for the supervisory evaluation provided for the Round 2 selection
were suspect, noting that her Supervisor reduced her score in the area
involving co-worker relationships from the scores which he had provided
during Round 1 and her Round 1 supervisory evaluation scores involving
co-worker relationships and interpersonal effectiveness were higher than
the Round 2 scores that the selectee had received during Round 1.
Complainant rejects the agency's explanation that she was also not
selected because she had no experience doing consults, electronic waiting
lists (EWL) or working in other clinics. She contends that none of the 15
interview questions addressed this area, that the record does not contain
evidence that the selectees had this experience, and the investigator did
not provide complainant with a full opportunity to respond to her alleged
lack of experience in these areas or to the agency's claim that she had
no experience working in other clinics. Complainant asserts that she
had worked in the eye clinic and had made appointments for six different
clinics and so was familiar with the operation of clinics other than the
clinic in which she worked and that the agency did not submit evidence
that all of the selectees had greater clinic experience than her.
Complainant argues also that she was more qualified than four candidates,
noting that she had worked for the agency longer than all but one of
the selectees, had been performing the duties of an MSA longer than
four selectees, and that she was the only candidate with six years
of specialized MSA experience who was not selected. Complainant also
contends that one of the selectees had been at the agency for only four
months and that the selectee during Round 2 had been an MSA for only a
year and a half and was ranked lower than complainant in interview and
evaluation during Round 2.
ANALYSIS AND FINDINGS
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject
to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he or she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal by showing that:
(1) complainant engaged in protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, complainant was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department of
the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). Complainant
can establish a prima facie case of reprisal by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6,
1996) (citing McDonnell Douglas, 411 U.S. at 802). In general, a
complainant can demonstrate a causal connection using temporal proximity
when the separation between the employer's knowledge of the protected
activity and the adverse action is very close. See Clark County School
District v. Breeden, 532 U.S. 268 (2001) (holding that a three-month
period was not proximate enough to establish a causal nexus).
As an initial matter, the Commission finds that the agency's failure
to issue a decision timely to 29 C.F.R. � 1614.110(b) did not prejudice
complainant's discrimination case, under the circumstances of this case.
The Commission also finds that the record is sufficiently developed to
make a determination on the merits of the complaint.
Regarding claim 1, complainant has not established a prima facie case of
reprisal. She has not shown that she had engaged in protected activity
prior to the nonselection. Even if complainant established a prima
facie case of reprisal for claim 1, we find no evidence of reprisal by
the agency. Complainant, however, has established a prima facie case
of race/national origin discrimination. Complainant is a member of a
protected group (White/non-Hispanic); she was qualified and referred for
the position; she was not selected for the position; and others outside
of her protected group were selected.
We find further, however, that the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant for the
position and complainant has not shown that the agency's reasons for not
selecting her were pretextual. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
Complainant ranked eleventh in overall scores in the selection process
and the agency selected the top seven candidates based on their scores.
Further, complainant has not shown by a preponderance of the evidence that
the agency was motivated by discriminatory animus when she was not ranked
higher and not selected. The record reveals that after the interviews
were completed, the PSS Chief met with the panelists, completed a matrix,
and discussed the candidates. The record also reveals that some of
the candidates had worked with the panelists. The record reveals that
although the PSS Chief would make the ultimate selection, each of the
four panelists (all of whom were supervisors) was allowed to select their
top three choices for their units and the PSS Chief made the selection
for the supervisory positions which were vacant. Complainant's name
was not on any of the lists of the top three choices.
Although complainant may have worked for the agency longer than some
of the selectees, the Commission has repeatedly held that mere length
of service with the agency does not necessarily make an individual more
qualified for a position. McGettigan v. Department of the Treasury, EEOC
Appeal No. 01924372 (February 24, 1993); Ford v. Department of Health
and Human Services, EEOC Appeal No. 01913521 (December 19, 1991). Also,
a finding that one explanation by an agency for a personnel action is
invalid does not mandate a finding that the act was discriminatory; all
the agency's proffered reasons must be examined. See Sims v. Cleland,
813 F.2d 790, 793 (6th Cir. 1987); Pollan v. United States Postal Service,
EEOC Request No. 05891093 (January 19, 1990).
Regarding claim 2, we find that the agency also did not discriminate
against complainant because of her race or retaliate against her when it
did not select her and selected an African-American. The record reveals
that when one of the selectees in claim 1 accepted another position
after being selected in Round 1, an LMSA became vacant. The record also
reveals that the same referral list of remaining qualified applicants
was used. The record reveals that five persons were interviewed
for the position by the new panel. The record also reveals that the
selectee, an African-American, scored highest, based on the interview
and the supervisory evaluation. Complainant scored the second highest.
The Supervisor (Supervisor A) with whom complainant would have worked
had she been selected and who made the selection stated that he always
appreciated the work complainant did and that she was very good at what
she did. He stated, however, that the selectee demonstrated a lot of
initiative, had worked in a variety of clinics and had learned how
to prepare reports, including spreadsheets, and action-required and
consult reports. Supervisor A stated further that it was the ability
to communicate with co-workers, to teach others, and having initiative
that made a difference in his selection. He stated that complainant
was good at the job which she was doing but that she had difficulty in
trying to teach others to perform her work and appeared to him as if
she were protecting her territory. Supervisor A stated that although
an employee might have been doing a good job, if the employee had extra
skill and knowledge, and was able to work with others and train, that
employee would have an edge.
One of the panelists (Panelist A) for Round 1 stated that he could not
say anything really bad about complainant but that there were a couple
of times she was short with him when he had to obtain patient information
from her. Another panelist (Panelist B) for the Round 1 interviews stated
that although she was fond of complainant and believed that she was a
terrific person, complainant was not a person who could work with other
co-workers or a person who would want to go to other clinics to learn.
Panelist C, who participated in Round 1 and Round 2 interviews, stated
that during Round 2, the selectee performed better during her interview.
While the record indicates that complainant's Supervisor, who was not on
the panel for Round 2 interviews, reduced his scores for complainant in
the supervisory evaluation which he provided to the panel during Round 2,
the record does not establish that he did so for discriminatory reasons.
Furthermore, the record shows that at the time he provided the scores
when complainant was first interviewed, he had only supervised her since
July 2005. Although complainant appeared to be a good employee and there
were no performance issues, complainant did not appear to be moving in the
direction that the PSS Chief had envisioned for the newly created position
and complainant did not appear to demonstrate leadership. The PSS Chief
stated in her affidavit that the LMSAs were going to have to provide
training to all the new employees and they would have to cross train
in all of the different areas. She also stated that they were looking
for persons who were good trainers, who had excellent personalities, who
could be leaders and cheerleaders and get enthusiasm from the MSAs, and
who were willing to float and not just work at their own desks every day.
The PSS Chief stated that each day, the LMSA would either be training in
a different area or filling in for someone else and had to be flexible.
She also stated that the LMSAs had to be able to get along with all
different types of people and be a leader. While complainant may have
been able to get along with others generally, this ability appeared that
it had to be more expansive in the LMSA position where complainant had
to lead and where she would have to play a more extroverted role than
she appeared to have demonstrated. Complainant may have been able to
get along with co-workers in the unit and that cooperation may have been
adequate in her MSA position but not for a leadership position.
The Commission notes that although the panels may have considered
other qualities other than those listed on the vacancy announcement
in making their selection, we do not find that this action, without
more, indicates discriminatory animus. As with some of the selectees,
complainant was known to some of the panelists and likely she would not
have been evaluated in isolation and the knowledge and observation of
complainant's qualities would have influenced their selection. While it
is clear that complainant was a good worker, she was not someone that
made the top tier. The agency had recently created the LMSA positions
and the PSS Chief had ideas about her vision for the LMSAs and the
Supervisors knew what qualities they were looking for in an LMSA who
would report to them. The Commission will not substitute its judgment
for that of selecting officials familiar with the present and future
needs of their facility and, therefore, in a better position to judge
the respective merits of each candidate, unless probative facts suggest
that proscribed considerations entered into the decision-making process.
See Bauer v. Bailor, 647 F. 2d 1037, 1048 (10th Cir. 1981)). Further,
absent evidence of a discriminatory motivation, an employer generally
has discretion to choose among equally qualified candidates.
Construing the evidence in the light most favorable to complainant,
complainant has failed to show by a preponderance of the evidence that
the agency discriminated against her on the basis of race or reprisal.
The ultimate burden of showing that the agency intentionally discriminated
against complainant remains at all times with complainant. Complainant
failed to carry this burden.
CONCLUSION
Accordingly, the agency's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
September 11, 2009
__________________
Dat
1 In her complaint, complainant identified her race as White/non-Hispanic.
Hispanic is more appropriately designated as national origin
discrimination. However, the analytical framework utilized under
either classification is the same. Garriga v Department of the Navy,
EEOC Appeal No. 01974697 (March 3, 1999); Luna v. Department of the Air
Force, EEOC Request No. 05930722 (March 17, 1994).
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0120080997
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013