0120081535
05-30-2008
Carolyn D. Murphy, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Carolyn D. Murphy,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081535
Agency No. 200L0603200710153
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 15, 2008 final decision 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.
At the time of events giving rise to this complaint, complainant worked
as a Housekeeping Aide, WG-2 at the agency's Environmental Management
Services Line at the Veterans Affairs Medical Center in Louisville, KY.
After complainant failed to request a hearing before an Administrative
Judge, the agency issued its final agency decision ("FAD") on January
15, 2008 finding no discrimination. Complainant filed a timely appeal
on February 11, 2008.
On April 5, 2007, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (African-American) and
sex (female) when, with two full-time positions available, management
did not convert complainant's status from part-time to full-time, but
instead converted the status of two Caucasian males.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b) concluding that complainant failed to prove that she was
subjected to discrimination as alleged. In its FAD, the agency found
that management used legal, non-discriminatory means to determine who
received the conversions. The agency then found that complainant had
failed to rebut the non-discriminatory reasons and failed to provide
evidence of pretext.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (Nov. 9, 1999). (explaining that the de
novo standard of review "requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker," and that EEOC "review the documents, statements, and
testimony of record, including any timely and relevant submissions of
the parties, and . . . issue its decision based on the Commission's own
assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must
generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, complainant must prove, by
a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, EEOC Request No. 05950842; Pavelka v. Dep't of the Navy,
EEOC Request No. 05950351 (Dec. 14, 1995).
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
decision.
Through her complaint, affidavit, and appeal, complainant has failed to
rebut the agency's demonstration of legal, non-discriminatory reasons
for converting two other employees - and not complainant - to part-time
status.
Various supervisors interviewed complainant and the five other
candidates. The applicants were asked the same five job-related questions.
The supervisors graded each candidate based on the detail and knowledge
contained within the candidate's response. Each supervisor recorded
grades on score sheets, which were then signed and dated. (Investigative
Report ("IR") Aff. B3 at 12:3-6.) A review of the interview notes and
scores demonstrate that the two employees granted conversion received an
average score of 16.3 and 14.6 out of a possible 20 points respectively.
Complainant received an average of 12.3.1 One supervisor questioned her
work ethics. (IR Aff. B4 at 12:11-15.) Complainant has not demonstrated
that the interview method of selection is discriminatory.
Further, complainant has not pointed to any evidence in the record,
apart from her own assertions, that provides evidence of pretext behind
the agency's decision. Complainant argues that the agency converted
the status of an employee who was still on probation, stating that
such employees are ineligible for conversion to full-time status.
Several supervisors stated that probationary status was not a factor
for conversion; each employee is eligible regardless of his or her
probationary status. (IR Aff. B2 at 8:16-20; IR Aff. B4 at 11:2-7;
IR Aff. B6 at 13:17-19.) Complainant has failed to rebut this assertion.
Without more, we cannot determine that, by a preponderance of the
evidence, complainant has rebutted the agency's non-discriminatory
reasons, nor has complainant demonstrated that pretext existed.
Accordingly, the agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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 30, 2008
__________________
Date
1 Complainant's average scores ranked third out of six candidates
and exceeded that of two Caucasian males considered for the full-time
positions. This undercuts an argument that the interview process was
discriminatory.
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0120081535
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081535