Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 26, 2013

0120111768 (E.E.O.C. Mar. 26, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120111768

Hearing No. 430-2008-00043X

Agency No. 2004-0659-2007100095

DECISION

On January 19, 2010, Complainant filed an appeal from the Agency’s December 15, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Administrative
Officer, GS-12, at the Agency’s Primary Care Service Line, Veterans Affairs Medical Center
in Salisbury, North Carolina. The Agency posted a vacancy announcement for the position of
Health System Specialist, GS-13, from June 22, 2006, through July 3, 2006. Complainant and
six other candidates applied for the position and were found qualified. The Agency convened
an interview Panel consisting of three members: a GS-12 Administrative Officer for Research
and Education (Panel Member 1), the Associate Chief Nurse of Mental Health and Behavioral
Science (Panel Member 2), and a Nurse Manager (Panel Member 3).1

1 A fourth panel member was supposed to participate but decided that her workload prevented
her participation.
Each Panel Member
independently reviewed the Knowledge, Skills, Abilities, and other Attributes (KSAOs) for the
seven candidates and rated them on a scale of 1-5. Each candidate was then interviewed and
their responses to the interview were rated individually by the Panel Members on a scale of 1-
5. The Panel then tabulated the scores and ranked the candidates with composite scores
ranging from the highest score of 62.6 to the lowest score of 32.0. Complainant received a
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score of 55.3, which was the fifth highest score. The candidates with the three highest
composite scores were referred to the Selecting Official for consideration. The candidate with
the highest composite score was selected for the position.

Complainant filed an EEO complaint dated January 12, 2007, alleging that the Agency
discriminated against her on the basis of race (African-American) when:

Complainant was not selected as a Health Systems Specialist.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing
on the complaint. Thereafter, the AJ issued a decision on November 9, 2010.

In his decision, the AJ found the Agency articulated legitimate, non-discriminatory reasons for
not selecting Complainant for the Health System Specialist position: a more qualified
candidate was selected.

The AJ found Complainant has not adduced sufficient evidence to support a finding of pretext.
The AJ noted Complainant argued that other Health Systems Specialists in the Agency have
Master’s degrees and are Caucasian while the Selectee did not have a Master’s degree. The AJ
noted Complainant argued that the Panel omitted an educational component to the job
requirement when four African-American candidates applied for the position, and that, because
of this de-emphasis on education, the Agency selected a “less qualified” candidate, the
Selectee, for the position at issue.2

The AJ noted that Complainant claimed that she was “better suited” than the Selectee for the
Health System Specialist position. The AJ noted that Complainant stated that had education
been one of the selection criteria, the Selectee would have been the least qualified applicant.
The AJ found Complainant’s subjective opinions about the Selectee’s qualifications were not
germane to a disparate treatment analysis.

Specifically, the AJ found that Complainant’s contention that possessing a post-secondary
degree(s) rendered her a better qualified candidate was unpersuasive. The AJ noted there was
no evidence that possessing a post-secondary degree(s) was a criterion for the Health System
Specialist position, nor that the omission of requiring a post-secondary education was used as a
proxy to screen-out “more qualified” candidates. The AJ also noted that Complainant’s belief
about the Selectee’s ability to perform the job was not relevant, when compared to the record
evidence indicating that the Selectee had been deemed one of the seven qualified individuals
the Panel had to assess and that the Selectee had been an Administrative Officer (AO) for a
number of years.

2 The AJ noted the Agency settled another complaint by an African-American Complainant
related to the same contested Health System Specialist position.
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The AJ found that although the Panel’s ranking process was less than ideal in some respects
(i.e., de-emphasizing education and having one panel member at a GS-12 level interviewing
candidates for a GS-13 position), the evidence did not support a finding that the panel
discriminated against Complainant based on her race.

The AJ also noted that Complainant claimed there was personal dislike for her by Panel
Member 1 who was the selection committee chair. The AJ found that favoritism, without
more, is insufficient to establish a claim of discrimination. The AJ noted that the Selecting
Official testified that she chose the Selectee based on her number of years of experience as an
AO, her overall application package, and her interview scores. The AJ noted the Selecting
Official credibly testified that she had recently returned to the Agency and had relied heavily
on the Panel’s recommendations in making her decision. The AJ noted the Selecting Official
did not know any of the candidates and had not interviewed them and found no evidence to
indicate that the Selecting Official used proscribed factors in making the selection.

The Agency subsequently issued a final order on December 15, 2010. The Agency’s final
order fully implemented the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

ANALYSIS 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.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

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). She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction 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 Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
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Complainant must prove, by a preponderance of the evidence, that the agency’s explanation is
a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the
Navy, EEOC Request No. 05950351 (December 14, 1995).

After a careful review of the record, the Commission finds that the AJ's findings of fact are
supported by substantial evidence in the record and that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies, and laws. Moreover,
we find the record was fully developed in this case. In the present case, the record supports
the AJ’s finding that the Agency presented legitimate, non-discriminatory reasons for not
selecting Complainant, the Selectee was the most qualified candidate based on her work record
and performance during the interview. Complainant did not show that her qualifications were
plainly superior to those of the Selectee. Upon review, we find Complainant failed to show
that the Agency’s actions were a pretext for prohibited discrimination.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.

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.
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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

March 26, 2013
Date