01a51548
05-31-2005
Georgia M. Kirts, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Georgia M. Kirts v. Department of Veterans Affairs
01A51548
May 31, 2005
.
Georgia M. Kirts,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51548
Agency No. 200L-0502-2003104330
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. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Occupational Therapy Assistant at the agency's VA Medical Center
facility in Alexandria, Louisiana. Complainant sought EEO counseling
and subsequently filed a formal complaint on October 14, 2003, alleging
that she was discriminated against on the basis of sex (female) when
on September 15, 2004, her application for a position as a Supervisory
Medical Supply Technician, GS-8, was not referred for selection.
The facts in this matter are as follows. Complainant has worked for the
Department of Veterans Affairs for over twenty-seven years. On June
27, 2003, complainant applied for the position of Supervisory Medical
Supply Technician, GS-7, Target 8, or GS-8 (VA# 03-128). A month later,
complainant received notice that the announcement had been cancelled.
The reason for the cancellation was that the agency had erroneously
categorized the job as a GS-7. See Affidavit B-3 at 13:22-25. The job
was advertised a second time (VA# 03-158), after the agency corrected the
grade level error, but at that time only complainant and the eventual
selectee applied for the job and neither applicant had met the minimal
requirements. The agency again decided to withdraw the announcement and
invite the applicants to re-submit their applications at a later time.
At that point, the selectee amended his application to include relevant
specialized experience that he omitted from his Official Personnel File
(OPF). The job announcement was reissued a third time (VA# 158R) in
August 2003. Complainant again applied, as did the selectee submitting
his amended application. Complainant then visited the HR office to
seek information about the hiring process and request copies of her
prior applications. On September 15, 2003, the HR office informed
complainant that another applicant had been selected for the position.
At the conclusion of the EEO investigation into the matter, 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 concluded that complainant had failed to prove sex
discrimination. Specifically, the agency determined that even assuming
complainant established a prima facie case of discrimination, she failed
to overcome and prove that the human resources (HR) personnel's reasons
for excluding her from final selection were pretextual. The agency
explained that although complainant's Knowledge, Skills and Abilities
(KSA) form described her training and experience, that information
was not listed in her OPF. To make the initial decision of who meets
the minimum qualifications for the position, HR reviews only the OPF.
After an applicant is found to be minimally qualified for the position,
HR reviews the KSAs. As complainant did not list what she believes to
be her specialized experience in her OPF, HR determined that she did not
meet the minimum qualifications for the position. Morever, the agency
determined that even if she had listed the experience which she deemed
relevant in her OPF file, she would not have been referred for selection
because she lacked practical experience or education directly related
to the job. See generally FAD.
On appeal, complainant contends that her non-selection was wrongful
because the agency mis-characterized and overlooked her experience
and knowledge for the position. Complainant insists that she has the
required experience because she has had more than one year experience at
the GS-6 level, in fact, she had more than fourteen years experience.
Complainant also insists that unlike the selectee, she was wrongly
denied the opportunity to supplement her job application when it was
re-advertised. See Appeal. The agency requests that we affirm its FAD.
Legal Analysis
The Commission shall review the agency's final decision based on a de
novo standard. This means that in arriving at our conclusion we will
examine the record without regard to the factual or legal determinations
of the agency in its final decision.
Where, as here, complainant does not have direct evidence of
discrimination, a claim alleging disparate treatment are examined
under the tripartite analysis first set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, complainant
initially must 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 St Mary's Honor
Cntr. v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411
U.S. at 802. Next, in response, the agency must articulate a legitimate,
nondiscriminatory reason for the challenged actions. See Burdine,
450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is
complainant's burden to demonstrate by a preponderance of the evidence
that the agency's action was based on prohibited considerations of
discrimination, that is, its articulated reason for its action was not
its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411
U.S. at 804; see also Tettleton v. Gov't Printing Office, EEOC Petition
No. 03A00080, *3 (July 26, 2001).
Unlike the agency that found that complainant �arguably� established
a prima facie case of sex discrimination, we find that she has not.
Complainant had failed to bring forth any evidence that raises the
inference of discrimination. First, we note that the responding
management official and the HR representative, who also pre-qualified
applicants for the position are both women. This point, of course, is not
conclusive that discrimination did not take place, but it does undermine
complainant's argument. Furthermore, in complainant's affidavit and in
response to the question of why she believed she was discriminated on the
basis of sex, she stated, �because the last three or four supervisors in
[the Supervisory Medical Supply Technician] job have been male.� We
find this to be insufficient to raise an inference of discrimination.
Moreover, she does not provide any information on similarly situated
male applicants to the position who were treated differently than she.
We do not find that the selectee was similarly situated employee because
he held a different position than complainant at the time they both
applied for the job. Although the failure to provide information on
similarly situated comparatives is not necessarily fatal to her claim,
there is no other evidence on the record to suggest that the agency
discriminated against her because of her sex.
Nevertheless, assuming, as the agency does, that complainant raised a
prima facie case of sex discrimination, we find that she failed to present
evidence that more likely than not, the agency's articulated reasons for
its actions were a pretext for discrimination. The agency stated that
complainant met the time-in-grade requirement for the position; however,
she lacked specialized experience relating to the specific functions
of a Supervisory Medical Supply Technician, such as decontaminating
and sterilizing equipment. See Affidavit B-2 at 10:1-9, 13:20-15.
HR looked for a candidate not with general supplying experience,
but rather with medical supplying experience, technical expertise and
supervisory experience. Complainant did not list this kind of experience
in her OPF. Moreover, she did not possess the technical experience needed
for the job and she lacked specific job related education that would make
up for the lack of practical experience See Affidavit B-3 at 7:19-24,
and 11:5-15. The selectee, on the other hand, stated on his application
that he had specialized experience. Particularly relevant to HR was the
fact that he was already a Medical Supply Technician, GS-6, at the time
he applied, and thus possessed the technical knowledge needed for the job.
See ROI Exs. C-3 � C-5.
In response to the agency's non-discriminatory reasons for not referring
complainant for final selection, complainant suggests that she was
intentionally misled by the HR personnel and that her application
rejections and the continual reissuing of the vacancy announcement was
part of an effort to allow the selectee to change his application and
get the job. There is simply no evidence to support this contention.
We find that if complainant believed she had relevant experience, she
could have amended her OPF, as the selectee had done. No evidence exists
that the selectee was given preferential treatment by the HR personnel
or told what was deficient in his application so that he could amend
it and resubmit it. In fact, the HR Officer stated that she personally
explained the application process to complainant and advised her as to
the proper way to fill out the application, but complainant failed to
follow instructions. See Counselor's Report at 2.
On appeal complainant simply states that she believes the agency
acted wrongfully, yet she points to no evidence to support her claims.
It is well settled that subjective belief, however genuine, does not
constitute evidence of pretext or provide a basis for remedial relief.
See Mroz v. Dep't of Defense, EEOC Appeal No.01A33187 (Jan. 23, 2004).
Furthermore, it is not sufficient �to disbelieve the employer; the
fact-finder must believe the plaintiff's explanation of intentional
discrimination.� O'Dell v. United States Postal Serv., EEOC Appeal
No. 01981939 (May 23, 2001) (quoting Hicks, 509 U.S. 502 (1993)).
Moreover, we have repeatedly recognized that the agency generally has
broad discretion to set policies and carry out personnel decisions, and
should not be second-guessed by the reviewing authority absent evidence of
unlawful motivation. See Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 259 (1981). The EEOC does not have the authority nor
the capacity to stand as the super-personnel department for the VA.
Nevertheless, personnel decisions which are idiosyncratic or suspect,
however, will be subjected to heightened scrutiny. See Andre v. Dep't
of Defense, EEOC Appeal No. 01994562 (Feb. 22, 2002). Deviations from
standard procedures without explanation or justification are sufficient
to support an inference of pretext. See Hovey v. Dep't of Hous. & Urban
Dev., EEOC Appeal No. 01973965, (Aug. 31, 2000). We find no evidence
that the HR personnel's decision not to refer complainant for selection
is idiosyncratic or suspect. Therefore, we will not second-guess or
overrule it.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
May 31, 2005
__________________
Date