0120101472
07-23-2010
Sarah Davis, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sarah Davis,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101472
Hearing No. 410-2009-00316X
Agency No. 2001-0508-2009100454
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's
appeal from the Agency's January 25, 2010 final order 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.
BACKGROUND
During the period at issue, Complainant was employed as a Supply
Technician, GS-7, at the Agency's Logistics Service Department, Atlanta
VA Medical Center in Atlanta, Georgia.
On December 12, 2008, Complainant filed the instant formal complaint.
Therein, Complainant alleged that the Agency discriminated against her
on the basis of race (African-American) when:
on October 19, 2008, she became aware that she was not selected for the
position of Inventory Management Specialist, GS-9/11, advertised under
Vacancy Announcement Number 07-095CW.
The record reflects that the position of Inventory Management Specialist
was an intern position. The subject intern position was a management
training position put in place to compensate for the anticipated impending
retirement of numerous upper management officials. This intern position,
along with others, was put in place to assure that a sufficient number of
employees were ready to work in management positions as current management
employees retired. The subject position was specifically created with
the intention of grooming an employee for a chief/manager position.
Following the hearing held on November 20, 2009, the AJ issued a decision
on January 6, 2010, finding no discrimination. The AJ found that
Complainant established a prima facie case of race discrimination because
the selectee, not in Complainant's protected class, was selected for the
position of Inventory Management Specialist. The AJ found, however,
that the Agency articulated legitimate, nondiscriminatory reasons for
Complainant's non-selection. The AJ found that Complainant did not
establish that more likely than not, the Agency's articulated reasons were
a pretext to mask unlawful discrimination. Furthermore, the AJ concluded
that a review of the record indicates no evidence to support Complainant's
contentions that she was more qualified than the selectee.
The AJ noted that twelve candidates, including Complainant, were
interviewed for the subject position. The selecting official (SO),
also Complainant's second level supervisor, stated that she was "looking
for somebody that had good communication skills, good writing skills,
somebody that had analytical skills, had some experience or at least
the ability to be able to prepare budgets and manage budgets since that
is a big portion. I was looking for somebody that showed initiative."
SO stated that she asked the supervisor of the Inventory Manager (P1)
to be on the selection panel with her because the selected candidate
"would be spending a lot of time with him on the technical aspect.
So he participated in the interviews." SO stated that she and P1 used
the performance based questions "that are appropriate to determine the
skill level or the aptitude for certain characteristics that go along
with the position."
SO stated that she chose the selectee for the subject position because of
his highest score, extensive work experience and educational background.
The record reflects that the selectee had an overall score of 34
while Complainant received an overall score of 12. SO stated that the
selectee provided "excellent answers" to the interview questions and
"he gave responses that were very clear, concise step-by-step on how
he could handle different situations." SO stated that she took the
selectee's educational background into consideration "because of the
achievements that he had made, had demonstrated that he had a lot of
the abilities and the skill set that I was looking for. He appeared
to be very goal oriented and worked very hard to complete his goals
- accomplish his goals." SO further stated "as far as taking the
initiative, [Selectee] had earned an MBA and worked in the field of
finance for two years, and then decided that he wanted to focus more
towards healthcare administration so he gave us his job in order to go
to school full-time to earn his healthcare administration degree, and
he also worked part-time jobs during that time." The record reflects
that the selectee held a Masters in health administration, a Masters in
Business, a Bachelors in Science degree, and had a background in nursing.
The AJ further noted that SO stated that Complainant did not perform as
well as other the candidates. Specifically, SO stated that Complainant
"was not able to come up with responses to a couple of the questions
and most of the responses were very vague as opposed to being specific
situations." SO further stated that Complainant "actually called back
later to provide an answer after the interview."
The AJ noted that P1, also Complainant's first-level supervisor, stated
that he recommended the selectee for the subject position because he
was the "top qualified candidate." P1 stated that during the telephone
interview, the selectee was "been able to answer very immediately with
effective communication that demonstrated that he had accomplished
the specific instances, according to the questions that we asked.
Overall, to me, [Selectee] appeared to be someone that was very sharp
intellectually and interviewed quite well, to tell you the truth.
The physical application that I received was very impressive."
P1 stated that during her interview, he and SO asked Complainant the
performance-based interview questions and that Complainant "was able
to draw on her past experiences. To my memory her responses - she did
not answer all the performed based interview questions we asked of her.
Her interview was not impressive in that standard because she wasn't
able to answer all the questions." P1 further stated that Complainant
was not one of the top ranked candidates.
Moreover, the AJ noted that the record reflects that even if the selectee
had not been selected, there were several other candidates whose scores
were higher than Complainant's for the subject position. Specifically,
the AJ noted that there was a candidate with an overall score of 26 and
two other candidates with a score of 20. Therefore, the AJ determined
that Complainant was not even second or third in line if the selectee
had not been selected for the subject position.
ANALYIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Having reviewed the record, we agree with the AJ's ultimate finding of
no discrimination. Complainant established a prima facie case of race
discrimination but was unable to maintain her case with evidence showing
that she was more qualified for the subject position than the selectee
or that the Agency's reason for not selecting her, addressed in detail
above, was a pretext to mask discrimination.
It is the decision of the Equal Employment Opportunity Commission to
AFFIRM the
Agency's final order because the AJ's ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the
evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (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 23, 2010
__________________
Date
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0120101472
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101472