0120083593
01-30-2009
Claudette M. Culp, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Claudette M. Culp,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083593
Agency No. 200L-0005-2006103826
Hearing No. 420-2007-00202X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 14, 2008 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
Complainant alleged that the agency discriminated against her on the bases
of disability (lumbar disc displacement with lumbar spinal fusion), age
(58), and in reprisal for prior EEO activity when:
on September 26, 2006, she learned that she was not selected for the
position of Information Technology Specialist, GS-2210-11, under Vacancy
Announcement Number 06-121.
The Administrative Judge (AJ) assigned to the case granted the agency's
motion for a decision without a hearing. The AJ found that complainant
had not established a prima facie case of disability and reprisal
discrimination.1 Regarding complainant's disability claim, the AJ
found that complainant failed to show that she is an individual with a
disability and that she did not submit sufficient evidence showing that
her medical conditions substantially limited any major life activity at
the time of the alleged discriminatory event. Regarding complainant's
reprisal claim, the AJ found that complainant did not show a nexus or
casual connection between her prior protected activity and the instant
matter.
The AJ found, however, that complainant established a prima facie case
of age discrimination because the three selectees were over 40 years
old but younger than complainant. The AJ nevertheless found that the
agency had articulated legitimate, non-discriminatory explanations
for complainant's non-selection. More specifically, the AJ noted that
according to the Selecting Official (SO), he did not select complainant
for position of Information Technology Specialist because she was not
the strongest candidate. The AJ further noted that the SO stated that
all candidates, including complainant, were qualified and considered good
candidates but the three selectees were better qualified for the subject
positions.2 The AJ indicated that complainant failed to show that her
qualifications were plainly superior to those of the selectees. The AJ
indicated that the agency had broad discretion to carry out personnel
decisions and they should not be second guessed by reviewing authority
absent evidence of an unlawful motivation. Finally, the AJ found that
complainant had not shown the agency's proffered explanation to be a
pretext for unlawful discrimination.
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 issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
January 30, 2009
__________________
Date
1 The Commission presumes for purposes of analysis only, and without so
finding, that complainant is an individual with a disability.
2 The record reflects that one of the three selectees declined the
agency's offer of employment.
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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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