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

Equal Employment Opportunity Commission

Mar 20, 2013

0120121894 (E.E.O.C. Mar. 20, 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. 0120121894

Agency No. 200I-V107-2011102751

DECISION

Complainant filed an appeal with this Commission concerning her complaint of unlawful
employment discrimination. For the reasons set forth, we AFFIRM the Agency’s decision,
finding no discrimination.

BACKGROUND

The record reveals that, during the relevant time, Complainant was employed as a Supervisory
Accountant in Veterans Integrated Services Network (VISN) 7 at the Agency’s VA Southeast
Network in Duluth, Georgia. Complainant sought EEO counseling and subsequently filed a
formal complaint.

Complainant alleges that she was subjected to discrimination on the bases of race
(African-American), sex (female), and age (over 40) when on March 28, 2011, Complainant
received a notice that management did not select her for the position of Supervisory (Deputy
Chief) Financial Manager, GS-0505-13, under Vacancy Announcement No. 011-VISN-84.

At the conclusion of the investigation, Complainant received a copy of the investigative report.
Additionally, the Agency informed Complainant of her right to request a hearing before an
EEOC Administrative Judge (AJ), or alternatively, to receive a final decision from the
Agency. Complainant requested a final decision from the Agency.

On February 28, 2012, the Agency issued its decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut. Thereafter,
Complainant filed the instant appeal.

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On appeal, Complainant argued that she was better qualified than the selectee based on her
credentials and that her application containing several years of supervisory and accounting
experience was miscalculated. Complainant argued that a White male was selected absent
proof that the selectee met the basic requirements as set forth in the job announcement.

In response to Complainant’s appeal, the Agency stated Complainant failed to establish by a
preponderance of the evidence that her non-selection was based on her race, sex, and age as
alleged. Based on the recommendation of a three-member Panel, the Agency argued that the
selecting official chose the selectee. The Agency said that Complainant was not interviewed
because her application score was too low.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See EEOC Management Directive 110, Chapter 9, § VI.A. November
9, 1999) (explaining that de novo standard of review “requires that the Commission examine
the record without regard to the factual and legal determinations of the previous decision
maker,” and that EEOC “review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and … issue its decision based on
the Commission’s own assessment of the record and its interpretation of the law”).

Upon review, we find that the Agency’s investigation was adequate. We also find that the
Agency articulated legitimate, nondiscriminatory reasons for its actions. The Chief Financial
Manager (CFM), the Selecting Official, said that three Panel members reviewed the
applications. The CFM stated that the three highest scoring applicants were then interviewed
by the panel. The CFM explained that Complainant did not score high enough to make it to
the interview stage. The CFM articulated that she selected the selectee, who was
recommended by the Panel for selection, because the selectee received the highest application
and interview composite score. The CFM denied ever making a statement to Complainant that
there were too many Black employees in the Centralized Office or ever telling Complainant
that she was older than her. The CFM denied that she discriminated against Complainant
based on race, sex, or age.

The record contains the Application Package Evaluation Worksheet which lists the ratings of
all the candidates for the position. Three Panel members separately rated each candidate and
their ratings were combined for the application rating score. The record shows there were
seven factors of experience/education and that each factor was rated on a score of 0 (lowest) to
5 (highest), so an applicant could score, for each rater, between 0 and 35 points (which would
mean a maximum of 105 points for all three Panel members combined).

Of the ten candidates, the three highest application package rating scores were 79, 72, and 67.
Only those three candidates were then interviewed and the selection was made among those
three candidates. The candidate with the 79 application package rating score was ultimately
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selected. The Worksheet shows that Complainant’s application package rating score was 28,
which was 8th highest of the 10 candidates.

Complainant argues she should have had a higher score and the selectee should have had a
lower score. There is no indication of pretext by the Agency or discrimination on the bases of
race, sex, or age. Assuming the Panel members all knew of Complainant’s race, sex, and age
(and knew of the other candidates’ race, sex, and age), we find that an examination of the
applications does not indicate that the Agency somehow intentionally underscored or over
scored any candidate. In her application, Complainant listed her present experience as
Supervisory Accountant. The selectee, however, listed his current position as Assistant
Medical Center Director at the G.V. (Sonny) Montgomery Veterans Affairs Medical Center,
where he worked with Chief Executive Officer to ensure compliance with operating budgets
and worked closely with the Chief Financial Officer to monitor quarterly and annual
projections. Furthermore, during part of that same time period, the selectee stated in his
application that he was Acting Associate Director (Chief Operating Officer) at the same facility
where he performed all duties of the Chief Operating Officer of a large two-division hospital
including direction of fiscal operations. Our review of the applications shows that it was a
reasonable ranking to have Complainant not scored nearly as high for experience as the
selectee. Furthermore, Complainant has not shown that any of the application rating package
scores were influenced by discrimination.

The Commission finds that Complainant failed to rebut the Agency’s articulated legitimate,
nondiscriminatory reasons. Additionally, the Commission finds that Complainant failed to
show that her qualifications for the Supervisory Financial Manager position were plainly
superior to the selectee’s qualifications or that the Agency’s actions were motivated by
discrimination. The Commission finds that Complainant failed to show, by a preponderance of
the evidence, that she was subjected to discrimination based on race, sex, or age.

CONCLUSION

The Agency’s decision finding no discrimination 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.

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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
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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 20, 2013
Date