01975300
02-05-1999
Joanne Rodriguez-Doshi, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.
Joanne Rodriguez-Doshi, )
Appellant, )
) Appeal No. 01975300
v. ) Agency No. 96-0717
) Hearing No. 210-96-6365X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs,)
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of national origin (Native
American & Hispanic), race (Native American), and color (Red/Brown),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
Appellant alleges she was discriminated against when: (1) on August 4,
1995, she was terminated from her temporary position; and (2) the agency
failed to select her for the following positions:
Program Support Clerk under Vacancy Announcement Number 95-085, on or
around September 12, 1995,
Secretary (typing) under Vacancy Announcement Number 95-084, on or around
September 12, 1995,
Program Support Clerk under Vacancy Announcement Number 95-083, on or
around September 12, 1995,
Office Automation Clerk under Vacancy Announcement Number 95-OC-2 (open
continuous), on or around August 7, 1995,
Secretary under Vacancy Announcement Number 95-072, in Medical Service,
Pathology and Laboratory Department, on or around July 31, 1995,
Secretary under Vacancy Announcement Number 95-068, in Education Service,
on or around October 3, 1995,
Secretary under Vacancy Announcement Number 95-064, in Physical Medicine
and Rehabilitation Service, on or around August 3, 1995,
Office Automation Clerk under Vacancy Announcement Number 95-056, in
Neurology Service, on or around October 2, 1995,
Office Automation Clerk under Vacancy Announcement Number 95-050, in
Psychology Service, on or around June 28, 1995,
Secretary under Vacancy Announcement Number 95-048, in Fiscal Service,
on or around June 14, 1995,
Secretary under Vacancy Announcement Number 95-046, in Psychiatry Service,
on or around July 7, 1995, and
Office Automation Clerk under Vacancy Announcement Number 95-038, in
Psychology Service and Neurology Service (part-time), on or around May
17, 1995.
The record reveals that during the relevant time, appellant, formerly
a GS-4 Office Automation Clerk in Medical Service at the agency's West
Side Medical Center, Chicago, Illinois, filed formal EEO complaints
with the agency on September 18, and October 23, 1995, alleging that
the agency had discriminated against her as referenced above. At the
conclusion of the investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
After engaging in protracted pre-hearing correspondence, and permitting
both parties to supplement the record, the AJ concluded after reviewing
the submitted documentation that pursuant to 29 C.F.R. � 1614.109(e),
a Recommended Decision (RD) without a hearing was appropriate.
The AJ first concluded that appellant failed to establish a prima facie
case of discrimination concerning her termination, but that
she did establish a circumstantial prima facie case of discrimination
respecting her non-selections because she was not selected for each
position, and individuals outside her protected classes were selected
for many of these positions. The AJ then concluded that even if
appellant established a prima facie case of discrimination concerning
her termination, the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that the agency's Chief of Medical
Service (Chief), and its Administrative Officer (Officer) consistently
stated that her temporary position, along with those of two other
individuals that summer, were eliminated on the advice of upper management
because of budget constraints. In response to appellant's allegation
that a high-school student assumed her duties, the Chief noted that a
Stay-in-School student assumed only basic clerical tasks which appellant
had performed, and that the funding for Stay-in-School students is derived
from funds outside the hospital's normal operating budget. The AJ
noted that the Chief's explanation was corroborated by another agency
management official. The Chief also noted that funding was subsequently
approved for a Program Assistant, but that this position was a different
grade from appellant's former position. The AJ then found that appellant
failed to present evidence that the agency's decision to terminate her
was a pretext for discrimination, and that judgment as a matter of law
for the agency respecting her termination was appropriate.
Respecting the non-selections, the AJ noted that appellant was found
qualified for some of the positions, and that she was only interviewed
for a few of the positions. The AJ then concluded that, with respect
to each of the twelve contested positions, the applicable selecting
official or other agency management official articulated legitimate,
nondiscriminatory reasons for not selecting appellant.<1> The AJ noted
that, of the twelve positions at issue, in two cases, the agency's
articulated reason was only �minimally sufficient,� but that appellant
failed to present evidence contesting the proffered reasons concerning
any of her non-selections, and she thus failed to demonstrate that more
likely than not, the agency's articulated reasons were a pretext to
mask unlawful discrimination.<2> The agency's FAD adopted the AJ's RD.
Appellant makes no new contentions on appeal, and the agency requests
that we affirm the FAD.
After a careful review of the record, we find that the AJ's RD summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. We agree with the AJ that appellant's general statements
that she had extensive administrative experience, and that in every
situation, individuals outside her protected classes were selected,
without more, are insufficient to rebut the agency's specific reasons for
each non-selection, and she thus failed to demonstrate that the agency's
actions were a pretext for unlawful discrimination. We discern no basis
to disturb the AJ's findings of no discrimination which were based on a
detailed assessment of the record. Therefore, after a careful review of
the record, including arguments and evidence not specifically addressed
in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
February 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 We note that the
AJ's RD adequately analyzes the relevant facts,
and we need not repeat her analysis except where
necessary.
2 The AJ, while noting a dispute over an alleged forged signature on
a performance evaluation for appellant submitted with the first two
positions set forth herein, concluded that the agency did not discover
any alleged forgery until after her EEO complaint was filed, and that
any impact of such a discovery would only have impacted the relief
due appellant. See McKennon v. Nashville Banner Publishing Co, 115
S. Ct. 879 (1995).