01A05619
03-12-2002
Remedios F. Reyes, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Remedios F. Reyes v. Department of Veterans Affairs
01A05619
March 12, 2002
.
Remedios F. Reyes,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05619
Agency No. 983763
DECISION
Remedios F. Reyes (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 Staff Nurse, Nurse II at the agency's Long Beach, California Medical
Center. Complainant sought EEO counseling and subsequently filed a formal
complaint on October 24, 1998, alleging that she was discriminated against
on the bases of race (Filipino) and national origin (Filipino) when:
(1) on or about September 8, 1998, she was not selected for the position
of Nurse Manager (Operating Room, Team 2), Grade Nurse II or III;
on or about August 26, 1998, she was not selected for the position of
Nurse Manager (Same Day Surgery); and
management failed to nominate her for a Group Special Contribution Award.
At the conclusion of the investigation, 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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination in regard to the Group Special
Contribution Award. In so finding, the agency noted that the individuals
nominated for the award were those who had volunteered to cover the
on-call positions and that complainant had not done so.
Turning to the non-selections, the agency found that complainant
established a prima facie case of race and national origin discrimination
in regard to both non-selections. The agency noted that complainant
applied and was qualified for both positions, but was not selected in
favor of individuals outside her protected classes.
The agency then concluded, however, that management officials articulated
legitimate non-discriminatory explanations for their selections.
Specifically, in regard to the Operating Room position, the selecting
official (SO) testified that complainant was not selected because the
points given to her by the interview panel did not place her at the
top of the list of recommended candidates. SO noted that the top-ranked
candidate was offered the position and, when she declined, the position
was offered to the second-ranked candidate (OR), who accepted. In regard
to the Same Day Surgery position, SO again testified that the selectee
(SD) had the highest rank based on the answers she gave to the interview
panel in response to standardized questions. Another management official
involved in the selection (SO2) testified that the SD scored higher on
the interview questions because she was more familiar with the process
and duties of same day surgery.
The agency concluded that complainant failed to establish that
these explanations were a pretext for discrimination. In response
to complainant's claim that SO told her he would not pick her as a
nurse manager no matter what, the agency found that SO denied making
the statement. Complainant also claimed that OR was preselected,
as evidenced by the fact that two of the interview panelists left the
room during complainant's interview. The agency concluded, however,
that although certain interviewers were called out of the room during
interviews, SO participated in the interviews 99% of the time. Moreover,
the agency noted that OR was clearly not preselected, as SO first chose
an applicant who declined the offer and only then offered the position
to OR. In response to complainant's claim that SD was first detailed
into the position and therefore must have been preselected, the agency
concluded that there was no evidence that placing SD into the detail
was discriminatory.
Complainant raises no contentions on appeal. The agency requests that
we affirm its FAD.
We first find that complainant failed to establish a prima facie case
of discrimination in regard to the Group Special Contribution Award.
Complainant provided no evidence raising an inference of discrimination
in regard to this issue. Indeed, complainant indicated that it was her
placement on Team I, as opposed to Team 2, that motivated the agency's
failure to nominate her. Complainant noted that there was rivalry between
the two teams and that only members of Team 2 received the Group Award.
Although the Commission finds that complainant properly established a
prima facie case of discrimination in regard to the non-selections,
we also find that complainant failed to present evidence that more
likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. In reaching this conclusion, we
note that SO testified that OR and SD received higher scores from the
interview panels than did complainant. A review of documents from the
interview reveals that OR received a total of 516 points, receiving higher
points from all five interviewers and complainant received 418 points.
Complainant provided no evidence to suggest that her lower scores were
motivated by a discriminatory animus. Indeed, as noted above, she implied
that the fact that she was on Team 1 and OR was on Team 2 motivated the
selection, noting that there were no members of Team 1 on the interview
panel. Even assuming this is true, however, it does not establish that
complainant's race or national origin motivated the selection. In regard
to the selection of SD, in addition to receiving higher interview scores,
S2 noted that SD had more experience with the process and duties of the
Same Day Surgery position. Although complainant argued that this was
because SD had been detailed to the position, there is no evidence to
suggest that the agency's prior decision to detail SD to the position
was motivated by discrimination.
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
March 12, 2002
Date