0120121798
04-25-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121798
Hearing No. 530-2010-00167X
Agency No. 200H-0613-2009103718
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 9, 2012 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Clinical Pharmacist Specialist at the Agency's Veterans Affairs Medical Center in Martinsburg, West Virginia.
On August 6, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of age (over 40) and in reprisal for prior EEO activity when:
in May 2009, she was not selected to be Clinical Coordinator/Residency Director Pharmacist, GS-13, pursuant to Announcement No. 09-T38H-086TS.
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On January 31, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In his decision, the AJ found no discrimination. Specifically, the AJ found that Complainant established a prima facie case of age discrimination when she was not selected for the position of Clinical Coordinator/Residency Director. The AJ further found regardless of whether Complainant is able to establish a prima facie case on any bases that the Agency articulated, legitimate, nondiscrimination reasons for its actions which Complainant did not show were a pretext.
The AJ found the record developed during the investigation contained the following undisputed facts. The AJ noted that the Chief of Pharmacy, also Complainant's supervisor, was the selecting official (selecting official) for the position of Clinical Coordinator/Residency Director. The AJ noted that there were only two candidates, including Complainant, that were considered qualified for the subject position and referred to the selecting official for consideration. The AJ noted that selecting official stated that he set up a recommending panel of five Agency officials to review the candidates' application packages, interview the candidates and make a recommendation to him. The AJ noted that the selecting official was not involved in the interview, evaluation and recommendation stages of the selection process. Based on the responses to each interview question each candidate was ranked and rated and their scores were tabulated. Complainant ranked second with an overall score of 18.28 while the other candidate ranked first with an overall score of 30.36. The recommending panel recommended the top ranked candidate for the subject position.
Further, the selecting official stated that he selected the selectee because she was best qualified for the subject position. Specifically, the selecting official stated that the selectee "had higher ranks for the interview process 30.36 rating. The selectee also had direct experience with one residency program which was an important aspect of the position."
The selecting official stated that he did not select Complainant for the subject position because she was not top ranked. Moreover, the selecting official stated that Complainant's age and prior protected activity were not factors in his determination to select the selectee for the subject position.
One of the recommending panelists stated that during the interview process, each panelist "took a turn asking each pre-specified question. Once the candidate answered the question, another panelist member would continue down the list of questions, asking one at a time." The panelist stated that each question was ranked by a scale of 1 - 5 "with 5 being the highest score. This was done the same for each candidate."
Further, the panelist stated that the panel recommended the selectee for the subject position because she "displayed more creative thinking and better answers for leadership and interpersonal effectiveness in the interview process." The panelist stated while Complainant's strong qualities "were personal mastery and organizational steward[d]ship. I felt she was weak in systems thinking for global program development in this specific area. I was also concerned about her interpersonal effectiveness abilities in this leadership role."
A second panelist stated that following the interview process, the panel recommended selectee for the subject position because she "did a residence here at the Martinsburg VA. She was involved with Residents after her graduation. She worked as Clinical Pharmacist Anticoagulation. She had clear goals for management + of both residents + clinical staff."
The second panelist further stated that during the interview, Complainant stated that she wanted to be a Residency mentor and had many years experience as a Pharmacist. The second panelist stated, however, Complainant "didn't have a clear plan for management, talked a lot about her work in union which didn't relate to job she was interviewing for." Moreover, the second panelist stated that Complainant "never did residency or work as Clinical staff."
Furthermore, the third panelist stated that the interview questions "provided a forum for candidates to express their visions for developing a Superior Residency & Clinical Pharmacist Programs. Candidates were requested to be specific with their answers by the moderator. The Complainant was rarely specific nor did she directly answer the question posted. Consequently, I never was able to discern what direction she engaged for the programs nor how she would manage it. To the contrary, the selectee was specific & to the point of the direction she sought for the programs & how she would manage them as questions were posted to her [emphasis in its original]."
The Agency fully implemented the AJ's decision finding no discrimination in its final order.
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant, on appeal, argues that the AJ erred in issuing a summary judgment because there are material facts at issue. However, beyond her bare assertions, we find that Complainant has failed to establish that there are material facts in dispute that require resolution through a hearing. Complainant "must do more than simply show that there is some metaphysical doubt as to the material facts," and instead must come forward with specific facts showing there is a genuine issue for hearing. Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).
Complainant also argues that she was denied the subject position "by a selecting official who engineered the selection from beginning to end." Complainant argues that the selectee was not minimally qualified for the subject position. Specifically, Complainant argues that the purpose of the residency program "is to provide extra instruction to newly minted pharmacists to make up for their general lack of the experience. [Selectee] herself, a recent graduate of the residency program, was little better than such a newly minted pharmacist. Selecting [selectee] to run the residency program is like selecting an assistant professor to be president of a university - possible in theory but unheard of in practice." However, with respect to this contention, the Commission has found that evidence of preselection, without more, does not establish that discrimination occurred. McAllister v. United States Postal Service, EEOC Request No. 05931038 (July 26, 1994). In this case, Complainant has not produced evidence that she was the plainly superior candidate. See Bauer v. Bailor, 647 F.2d 1037 (10th Cir. 1981). If preselection occurred in this case, the evidence points to it occurring because of the qualifications of the selectee and not discriminatory factors.
In sum, we find that the AJ's decision to grant summary judgment, and the findings of fact, are supported by the substantial evidence in the record. The AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward her age or prior protected activity.
The Agency's final order implementing the AJ's decision finding no discrimination is AFFIRMED.1
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
April 25, 2014
__________________
Date
1 On appeal, Complainant does not challenge the September 9, 2009 partial dismissal issued by the agency regarding one other claim (that she was discriminated against on the bases of age and in reprisal for prior EEO activity when during May 2005 and September 2008 a memorandum of understanding was issued granting the union president 100% of official time and being appointed Vice President of VA Council). Therefore, we have not addressed this issue in our decision.
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Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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