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

Equal Employment Opportunity Commission

Jun 14, 2013

0120121271 (E.E.O.C. Jun. 14, 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. 0120121271

Hearing No. 520-2010-00496X

Agency No. 200H06302008103782

DECISION

Complainant filed an appeal from the Agency’s December 21, 2011 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. 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 a Human Resource
Specialist at the Agency’s New York Harbor Health Care System facility in Brooklyn, New
York. On February 16, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), age (48), and in reprisal for
prior protected EEO activity when:

A. On July 1, 2008, Complainant was not selected for the position of Human
Resources Assistant, GS-0203-7 under vacancy ID 182900;

B. On January 13, 2009, Complainant was not selected for the position, of Human
Resources Specialist, GS-0201-7/9/11, under vacancy announcement no. 2008-
262.

Previously, in v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120092938 (November
19, 2009), Complainant appealed the Agency’s determination that no breach of a settlement
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agreement resolving the instant complaint had occurred. The Commission found that breach
did occur. The Commission ordered the Agency to resume processing of the instant complaint
from where processing had previously ceased. Complainant filed the instant complaint and the
Agency accepted claims (A) and (B) for processing by letter dated March 4, 2010.

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 requested a hearing and the AJ held a hearing on
November 9, 2011. The record shows that at the outset of the hearing, the parties stipulated
that Complainant’s complaint consisted only of claim (B) and also stipulated that Complainant
had established a prima facie case of discrimination based on her race (Black), age (49), and
reprisal when she was not selected for the position of Human Resources Specialist, under
vacancy announcement No. 2008-262. After the close of the hearing, the AJ issued his
Decision on November 9, 2011.

In his Decision, the AJ found that the material facts were not in dispute. The AJ found that
Complainant applied for the identified position, that Complainant was found qualified for the
position, and her name (along with the names of the other qualified candidates) was forwarded
by the interview panel to S1 (Complainant’s fourth level supervisor and the selecting official).
The AJ found the undisputed evidence showed that Complainant’s name appeared as the eighth
candidate on the referral list and that the S1 selected the top five candidates from the list for
hire. S1 did not select Complainant because she was not among the top five candidates, the AJ
found. The AJ found that Complainant established a prima facie case of race, age, and reprisal
discrimination and that the Agency articulated legitimate, non-discriminatory reasons for its
actions. The AJ further found that Complainant presented argument only in response to the
Agency’s reasons for its actions, stating that the rating scores should not have been forwarded
to the selecting official, given the number of applicants and the number of vacancies to be
filled by the announcement. The AJ found that Complainant did not present evidence from
which a finding of pretext could be made. The AJ found the undisputed facts showed that
Complainant was not subjected to discrimination on any basis as alleged.

The Agency subsequently issued a Final Order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.

On appeal, Complainant states that in 2010, S1 directed E1, a Human Resources employee, to
terminate Complainant’s salary deductions for union dues, which effectively ended
Complainant’s union representation, after which Complainant was forced to represent herself
during the processing of her complaint and to appear pro se before the AJ. Complainant
makes no challenge regarding claim (A) and does not dispute that claim (A) was withdrawn.
Therefore, we will not address claim (A).

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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). 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 Products, Inc., 530 U.S. 133 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995).

We find no dispute that S1 did not participate in the interview panel that created the list of
candidates from which the selections were made. We further find no dispute that
Complainant’s name did not appear among the first five names on the referral list from which
S1 made her selections. We find, as did the AJ, that Complainant presented no evidence from
which to conclude that the interview panel members were motivated by Complainant’s race,
age, or prior protected EEO activity in the creation of the list of candidates. We further find
that Complainant presented no evidence that S1’s decision to fill five vacancies with the top
five candidates was the product of discrimination. We find, as did the AJ, no evidence that
S1’s articulated reasons are a pretext to mask discrimination. Also, Complainant has not
produced evidence showing that her qualifications were plainly superior to those of the
selectee.

We consider Complainant’s contention that the elimination of Complainant’s automatic
deduction from her salary for union dues impaired Complainant’s ability to retain union
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representation during the EEO complaint process. We find the proper forum in which to raise
a claim pertaining to union matters, is through the negotiated grievance process, which, the
record shows, Complainant pursued. The Commission has held that a complainant should not
use the EEO complaint process to raise a matter more appropriately brought pursuant to the
collective bargaining agreement. See Wills v. Dep’t of Def., EEOC Request No. 05970596
(July 30, 1998).

CONCLUSION

Based on a thorough review of the record we AFFIRM the Agency’s Final Order finding no
discrimination.

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).
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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

June 14, 2013
Date