0120092948
10-29-2010
Christine Thai, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Christine Thai,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092948
Hearing No. 480-2008-00076X
Agency No. 200P-0377-2007102542
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 27, 2009 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 Veterans Service Representative, GS-10, at the Agency's Regional Office, Veterans Benefits in San Diego, California.
On June 12, 2007, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (Asian-Pacific Islander) and in reprisal for prior protected activity when:
1. on or about April 18, 2007, she received notification that she was not selected for the position of Rating Veterans Service Representative (RSVR), GS-996-10/11/12, under Vacancy Announcement No. 377-07-16; and
2. on July 3, 2007, she received notification that she was not selected for the position of RSVR, GS-996-10/11/12, under Vacancy Announcement No. 377-07-16.
The record reflects that in order to be qualified for the RSVR position at the GS-10, 11 or 12 levels, an applicant had to have one year of specialized experience at the level sought, and had to have had one year of time in grade at next lowest level. The record further reflects that the specialized experience required for the RSVR position was "knowledge of a complex field of laws, regulations and Federal legislation pertaining to the full range of veterans benefits and a comprehensive and thorough knowledge of state, federal and local benefits programs in order to be able to explain them to individuals of all educational backgrounds."
The record reflects that seven candidates, including Complainant, were considered qualified and were referred to the selecting official (SO) for consideration. In April 2007, the seven candidates were interviewed. On April 18, 2007, SO selected two applicants (both selectees are Caucasian) for the RSVR positions at the GS-11 level.
In June 2007, the referral certificates were reissued, and the remaining five applicants on the certificate were interviewed again. Following the June 2007 interview, SO selected two applicants (both selectees are African-Americans) for the RSVR positions at the GS-10 level.
Following the hearing held on March 6, 2009, the AJ issued a decision on May 1, 2009, finding no discrimination. The AJ found that in regard to the April 2007 non-selections (claim 1), Complainant did not establish a prima facie case of reprisal discrimination. However, the AJ found that Complainant established a prima facie case of race discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant. The AJ further found that Complainant did not establish that more likely than not, the Agency's articulated reasons were a pretext to mask unlawful discrimination. Specifically, the AJ found that SO stated that the two selectees were the most qualified applicants based on their work experience and did well during the interviews.
With respect to the June 2007 non-selections (claim 2), the AJ found that Complainant established a prima facie case of race and reprisal discrimination. Specifically, the AJ noted that in May 2007, Complainant engaged in prior protected activity when she contacted the EEO Counselor to challenge the April 2007 non-selections. The AJ further noted that SO was aware of Complainant's prior protected activity. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. The AJ noted that the two selectees were chosen for the subject positions based on receiving the two highest total scores on their interview responses, scenario responses and application packages.
Regarding claim 1, SO testified that he set up a panel of three panelists, including himself. SO stated that following the interviews, the panel met and conferred. SO stated that the other two panelists recommended that the selectees (S1 and S2) for the subject positions. SO stated that he agreed with the panelists' recommendations because he felt that S1 and S2 were best qualified. Specifically, SO stated that "based on the manner in which [S1 and S2] presented their package and the competitive nature of their interview, they were . . . able to respond to the questions in the interview in a way that led me to believe that their skill sets were such that they could serve as rating VRSs in a successful manner." Furthermore, SO stated that Complainant "did very poorly, and I think that's exemplified by the scores that we assigned to her in the April interview."
The Rating Team Coach (C1) was one of the three panelists for the subject positions. C1 testified that she was selected for the panel because "as the rating team coach being directly responsible for the folks that are hired on to the rating team, that's why I was selected, yes." C1 further testified that the subject positions are "a very difficult job. You need to really understand and know the law. You need to be able to make quick decisions looking through complicated complex documents, medical documents. And you need to be able to very quickly utilize the laws that we have in the agency to decide whether or not you're going to grant service connection or not which is . . . a very, very difficult thing to do at times."
C1 stated that during the interviews, the panel rated the applicants separately. C1 stated that following the interviews, the panel agreed that S1 and S2 were best qualified for the subject positions because "they were the most competitive in the interview process and the scenario." Specifically, C1 stated that the applicants were asked the same performance-based questions and S1 and S2's answers in the questions for the interviewer were very clear, very concise, very responsive to the questions, gave us good examples ..."
C1 stated that during her interview, Complainant did "not too well." Specifically, C1 stated that Complainant's answers "were not clear. They were not responsive at times to what we were looking for, what the questions dealt with." C1 stated that during Complainant's interview, "there were tears, yes. She was - - she was kind of pleading for the job, begging for the job." C1 stated that during the relevant time, she was never asked to downgrade or lower Complainant's score so she would be less competitive. Furthermore, C1 stated that SO never made comments to her about Complainant.
The other panelist (P1), an Assistant Veteran Service Center Manager, testified that Complainant was ranked fourth of the seven applicants. P1 stated that after a review of the applicants' application packages and their interview, she recommended that S1 and S2 be selected for the subject positions "based on the combined application, interview, and scenario scores, they ranked up on the top." P1 stated that Complainant did "very poorly" during her interview. Specifically, P1 stated that Complainant "does not answer the call of the questions. There's crying involved sometimes; and in this one, I believe there was some crying in there. She begs for the job at the interview and states that she should have it because she's been there longer than anybody."
Regarding claim 2, SO testified that he played a different role in the June interview compared to the April interview. Specifically, SO stated that he scored the applicants during their interviews and conferred with the panelists. SO stated that following his meeting with the panelists, he chose two selectees (S3 and S4) because they were best qualified. Specifically, SO stated that based on their matrix, S3 and S4 "scored fairly well and they did well. They were both very articulate. They answer the call of the question quite well. They were very responsive. They were concise. They didn't ramble. They just exhibited a lot of things in their communications at the interview stage that would - - that we're very impressed with."
SO stated that Complainant did not do well during her interview. Specifically, SO stated that during the course of the interview, Complainant "brought up personal issues about difficulty of her raising her sons and it was - - it was unfortunate. She cried and I don't know how to best say this, but she basically pleaded for the job. And that's not really what we would be looking for in - - in this type of an interview setting."
C1 stated that Complainant did not do very well during her interview. Complainant's responses during the second interview was very similar to the first interview. Specifically, C1 stated that "there was a lot of non-response to questions and . . . this time, the last question that I remember it clearly. I don't remember what the question was but she just started crying really hard and it was completely off topic and it was something that you don't forget." C1 stated that S3 and S4's responses to the questions "were much more thorough and they pertain to the questions asked. The responses were directed toward what we were asking and looking for whereas a lot of questions and [Complainant's] responses here were not."
Furthermore, C1 stated that near to the end of her interview, Complainant started crying because "it was in response to the last question after she finished when she was talking at the last question and she started talking about her children and that they didn't love her and that she wasn't a good mother and she was crying."
The other panelist (P2), a Management and Program Analyst, stated that she felt that S3 came to the interview well prepared and "she articulated herself very well. She responded fully to all of the questions, providing an answer for all of the questions. As far as her written scenario, both [S3] and [S4's] response to the written scenario was almost by the book, you could almost take what they wrote and put it into a rating decision. They provided a good amount of reason to base - - to support the decision that they made in response to the written scenario." P2 acknowledged that S4's interview was not as good as S3's interview "but she did give some good examples on some responses to the interview questions and she was very thorough in her response as well." P2 further stated that S3 and S4 "were related to characteristics that we are looking for in a rating specialist. You know, strong communication, ability to handle difficult tasks, then multiple tasks, ability to handle complex situations."
P2 stated that Complainant did not well during her interview. Specifically, P2 stated that she felt that Complainant "could have been a little bit more prepared coming into the interview. And what I mean by that is when we were . . . giving her the questions, most of the questions asked for specific examples or situations to respond back to the performance-based questions. And . . . there's nothing against taking the time to gather your thoughts and . . . sometimes the examples she gave didn't fully answer the question. And during one of the final questions, she did given a very personal example that got her a little emotional and maybe when trying to fulfill a position as a rating specialist, you deal with a lot of stress. So giving an example that kind of shows a hard time dealing with stress probably wasn't the best answer that she could have given in response to that question." P2 stated that the rating specialist position can be a stressful position because they have to make legally binding decisions. P2 stated that it appeared that Complainant "had a difficult time maybe handling, you know, a large amount of stress, which I would think the rating specialist position would probably create."
Further, P2 stated that Complainant could have used her work experience as examples during the interview "but she didn't. So that would have been the only way to know she would have responded that way and to one of the questions." P2 stated that she was never asked to downgrade or lower Complainant's score to make her less competitive.
On appeal, Complainant, through her representative, argues that the AJ erred in finding no discrimination. For instance, Complainant argues that the AJ erred in finding that she did not meet her burden of proof. Specifically, Complainant argues that SO was aware of her prior protected activity prior to the June 2007 interviews and that the close proximity of her prior protected activity to the selections in July 2007 "raises the inference that retaliation occurred in the July selections."
Further, Complainant argues that in his decision, the AJ "incorrectly stated that [complainant] had the opportunity to establish that the scores given were unfair, not accurate or otherwise discriminatory." Complainant argues that the Agency failed to provide any evidence as to how each applicant's interview response was scored and could not show that the selectees outscored her on the interviews. Finally, Complainant argues that the AJ "incorrectly relied on the less than credible, subjective and unfounded statements of the responsible management official(s)."
ANALYIS AND FINDINGS
As an initial matter, the Commission notes that the AJ chose to allow two witnesses (a Human Resources Specialist and P1) to testify by videoconference. In Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006), the Commission recently determined that videoconferencing provides an acceptable alternative to an in-person hearing. The Commission identified a number of factors that an Administrative Judge should consider before electing to proceed via videoconferencing, including: the availability and proximity to the participants of the videoconferencing facilities; the adequacy of the available videoconferencing facilities, to include any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objections of the parties, if any. Id.
In the instant case, the AJ, as in Allen, there is no indication of objection to the use of video-conferencing by either party. Under these circumstances, the Commission concludes that the AJ did not abuse his discretion by electing to allow two witnesses to testify by video conference to hold a video-conference hearing.
We also note that one witness (Complainant's former supervisor) testified by telephone at the hearing held by the AJ. The Commission has held that testimony may not be taken by telephone in the absence of exigent circumstances, unless at the joint request of the parties and provided that specified conditions have been met. See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).1 Here, it is clear that there were no issues of witness credibility that might have been impacted by the taking of this testimony by telephone, and neither party objected to the manner in which those witnesses testified. Under these circumstances, even if it is assumed that the AJ abused his discretion by taking testimony by telephone, the Commission finds that his action would have constituted harmless error.
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order because the Administrative Judge'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
October 29, 2010
__________________
Date
1 In Louthen, the Commission has promulgated its policy regarding the taking of telephonic testimony in the future by setting forth explicit standards and obligations on its Administrative Judges and the parties. Louthen requires either a finding of exigent circumstances or a joint and voluntary request by the parties with their informed consent. When assessing prior instances of telephonic testimony, the Commission will determine whether an abuse of discretion has occurred by considering the totality of the circumstances. In particular, the Commission will consider factors such as whether there were exigent circumstances, whether a party objected to the taking of telephonic testimony, whether the credibility of any witnesses testifying telephonically is at issue, and the importance of the testimony given telephonically. Further, where telephonic testimony is improperly taken, the Commission will scrutinize the evidence of record to determine whether the error was harmless, as is found in this case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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