0520100200
07-16-2010
Emma L. Blathers, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Emma L. Blathers,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Request No. 0520100200
Appeal No. 0120073432
Agency No. 2001-0534-2006102559
DENIAL
The Agency timely requested reconsideration of the decision in Emma
L. Blathers v. Department of Veterans Affairs, EEOC Appeal No. 0120073432
(December 10, 2009). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
In the underlying case, Complainant alleged that she was discriminated
against, 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.,
on the bases of race (African-American), sex (female), and age (58) when:
(1) on April 13, 2006, she was not selected for the position of Nursing
Assistant; (2) on May 11, 2006, she was not selected for the position of
Patient Services Assistant; (3) on July 10, 2006, she was not selected
for another Nursing Assistant position; and (4) she experienced multiple
non-selections from 1994 to 2006. The Agency found no discrimination
with regard to claims 1 though 3, and dismissed claim 4 for untimely
EEO Counselor contact.
The prior decision modified the Agency's final decision. The Commission
affirmed the Agency with regard to claims 1, 2, and 4, but reversed
the Agency's determination that Complainant did not establish age
discrimination in claim 3. In reversing the Agency's determination, the
Commission found that the Agency had failed to articulate a specific,
clear, and individualized explanation for Complainant's non-selection
to rebut her prima facie case of age discrimination, and consequently,
she was denied a fair opportunity to demonstrate pretext. Specifically,
the Commission noted that no Agency selecting officials were available
to testify regarding claim 3, nor did the Agency submit any specific
argument or evidence regarding how its selection was made.
In its request for reconsideration, the Agency contends that the
Commission's prior decision contains a clearly erroneous interpretation
of material fact, which resulted in a clearly erroneous interpretation
of law, because the prior decision "missed critical documentary evidence
which definitively answers the question" of why Complainant was not
interviewed for the position at issue in claim 3. The Agency admits
that the record does not contain testimony by a management official who
was involved in the selection, but asserts that the insufficiency of
Complainant's application package explains why she was not interviewed.1
The Agency argues that Complainant submitted an incomplete application
package because she did not provide responses to Job Elements/KSAOs,
as required by the position's vacancy announcement.2 In addition, the
Agency notes that a review of the other application packages confirms
that applicants who were deemed qualified were interviewed only if
their application packages were complete, and that applicants who had
submitted incomplete application packages were not interviewed. Finally,
the Agency asserts that there was nothing in Complainant's application
package that revealed her age.
Upon review of the record and the request for reconsideration, we find
that the Agency's request does not establish that the appellate decision
involved a clearly erroneous interpretation of material fact or law,
or that the appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency. The Agency had the
burden of producing evidence that Complainant's non-selection was due to a
legitimate, nondiscriminatory reason. The U.S. Supreme Court has stated,
"An articulation not admitted into evidence will not suffice. Thus,
the defendant cannot meet its burden merely through an answer to the
complaint or by argument of counsel." Texas Dep't of Community Affairs
v. Burdine, 450 US 248, 255 (1981), n.9. Although the Agency proffers
a reason in its request for reconsideration as to why Complainant was
not interviewed for the position, we note that the Agency's articulation
is not based on evidence, such as affidavit testimony, rating sheets, or
contemporaneous notes, from a management official with actual involvement
in the selection.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120073432 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The Agency
shall comply with the Order as set forth below.
ORDER (C0610)
The Agency is ordered to take the following remedial action within sixty
(60) days of the date this decision becomes final:
1. Offer Complainant the position of GS-5, Nursing Assistant, or a
substantially equivalent position, at the Charleston, South Carolina
location, retroactive to the date of her non-selection, July 10, 2006.
Complainant shall have fifteen (15) days from the date of the offer
to accept or decline the position. If Complainant should decline the
agency's offer of a position, the date of her rejection shall be the
end date for any back pay due Complainant.
2. The Agency shall determine the appropriate amount of back pay,
with interest, and other benefits due Complainant since July 10, 2006,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. Complainant shall
cooperate in the Agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the Agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the Agency shall issue a check to Complainant for
the undisputed amount within sixty (60) calendar days of the date the
Agency determines the amount it believes to be due. Complainant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The Agency shall provide eight (8) hours of EEO training to the
responsible management officials regarding their responsibilities under
EEO laws.
4. The Agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The Agency shall report
its decision to the Compliance Officer. If the Agency decides to take
disciplinary action, it shall identify the action taken. If the Agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the Agency's employ, the Agency shall
furnish documentation of their departure date(s).
The Agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Charleston, South Carolina offices
copies of the attached notice. Copies of the notice, after being
signed by the Agency's duly authorized representative, shall be posted
by the Agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The Agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File a Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
July 16, 2010
Date
1 The record contains the vacancy announcement, Complainant's application
package, and the application packages of the other applicants.
2 In its final decision, the Agency articulated a similar reason for
management's actions. The decision stated that "while no management
official was available for interview, management provided a copy of
Complainant's application packet. A review of that packet shows that
a rational fact finder would find her packet void of KSAOs, without a
resume, and not professionally accomplished."
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0520100200
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520100200