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

Equal Employment Opportunity Commission

Mar 14, 2014

0120121544 (E.E.O.C. Mar. 14, 2014)

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. 0120121544

Hearing No. 532-2008-00125X

Agency No. 200J05412007103287

DECISION
On February 13, 2012, Complainant filed an appeal from the Agency’s September 29, 2009,
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. The Commission deems the appeal
timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a).1

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
Support Clerk at the Veterans Affairs Medical Center in Brecksville, Ohio. On August 31,
2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her
on the bases of sex (female), age (54), and in reprisal for prior protected EEO activity when:
(1) on May 27, 2007 she was moved from her office on the first floor to an office on the
second floor further away from her patient care responsibilities; (2) on or around July 2, 2007,
she was informed she was not selected for the position of Medical Administrative Specialist-
Officer of the Day, MPA-07-112; (3) on or around August 8, 2007, she was informed she was

1 Complainant argues on appeal that she did not receive the Agency’s September 29, 2009 final
order in a timely manner. Given this assertion, the fact that the record contains numerous
instances where the Agency sent documents for Complainant to an incorrect address (as
explained herein below), and the fact that the Agency does not raise timeliness concerns, we
will consider this appeal timely.
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not qualified for the position of Procurement Technician, MPA-CBC-07-013 GS-6; (4) on July
2, 2007, she discovered that a clerk position was filled in the Police Service, without
announcing the position competitively; and (5) on or around July 2, 2007, she overheard a
conversation between other employees concerning the medical center's hiring/selecting
practices with regard to nepotism, including plans to restructure the dispatch section of Police
and Security Service for the purpose of selecting a supervisor who is not an officer.2

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. Complainant requested
an extension of time (until October 13, 2008) to respond to the Agency’s August 2, 2008
motion for summary judgment, because she received the Agency’s motion after the date that
she was required to respond.3

The AJ granted Complainant’s extension. However,
Complainant never submitted an opposition to the Agency’s motion. Thereafter, on September
23, 2009, the AJ granted the Agency’s motion. 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.

FACTUAL BACKGROUND
The record shows that on May 27, 2007, the Agency moved Complainant’s office from the
first floor to the second floor. Complainant’s third-line supervisor (S3) states that Complainant
and her office mate were moved to the second floor so that AMVETS national service officers,
who were housed in a different building, could move to where the other AMVETS service
officers were located, which was in Complainant's area. S3 also states that thereafter, two
schedulers were also moved as part of the process. S3 explained that the AMVETS service
officers meet with veterans every day while both Complainant and her co-worker had minimal
daily direct patient contact. The Agency was trying to have all the service officers in the same

2 Pursuant to 29 C.F.R. § 1614.107 (a)(1), the Agency dismissed Claim 5 for failing state a
claim that affects a term, condition, or privilege of employment. We agree with Agency’s
dismissal of this claim and note that Complainant does not raise this issue on appeal.
3 The record indicates that Complainant indicated one address (Address 1) in her informal EEO
counselor report and a new address (Address 2) in her formal EEO complaint. The two noted
addresses apparently caused numerous documents to be mailed incorrectly during the
processing of Complainant’s EEO complaint. The record also shows that when a document
was incorrectly sent to Address 1, the document would eventually be “returned to sender”
(i.e., the Agency) and the document would eventually be personally delivered to Complainant
at work. However, despite the apparent confusion between Address 1 and Address 2, it does
not appear that Complainant formally notified the Agency about the mistake until the delayed
receipt of the Agency’s motion for summary judgment. While Complainant asserts that the
Agency intentionally sent documents to the incorrect address, there is insufficient evidence in
the record to support such conclusion or that the delayed receipt of documents resulted in
unfair prejudice.
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area so that veterans did not have to go all over the hospital to meet with them. Complainant’s
first and second-level supervisors corroborate S3’s testimony.

The record shows that on March 30, 2007, the Agency posted vacancy announcement number
MPA-07-112 for the position of medical administrative specialist (administrative officer of the
day), GS-301-7/9. The record also shows that Complainant applied for the position and was
found qualified. However, management officials decided to close the vacancy announcement
without making a selection in order to expand the applicant pool. Complainant was notified of
this decision. On May 2, 2007, the vacancy announcement was reposted. However,
Complainant did not reapply. Complainant states that she did not reapply because she did not
know she needed to do so. Since Complainant did not reapply, she was not considered for the
position.

Complainant also applied for the position of Procurement Technician, MPA-CBC-07-013,
during the summer of 2007. The Human Resources Specialist assigned to this vacancy (HR1)
reviewed Complainant’s qualifications on August 8, 2007, and found that her application was
lacking information pertaining to whether she possessed the required knowledge, skills and
abilities (KSAs) for the position. HR1 asserts that he sent Complainant an e-mail notification
on August 8, 2007, indicating that based upon the missing information in Complainant’s
application he concluded that she was not qualified. HR1 further stated that Complainant
contacted another Human Resources Specialist (HR2) and insisted that she had seven days after
the announcement closed to send in additional KSA information. In response to Complainant’s
discussion with HR2, HR1 asserts that he informed Complainant that she had until the next day
to submit her additional KSA information. HR1 asserts that the following day, he checked and
did not see any additional material from Complainant. HR1 asserts that he checked the day
after that, in case the information got lost in transit or was delayed for some reason but no
additional documentation was received. Since no additional information was received, HR1
decided to stand by his original findings and determined Complainant was not qualified.

Complainant also asserts that on July 2, 2007, she learned that a clerk position in Police
Service was filled without being posted. According to Complainant, the Chief of Police (C1)
told her first-line supervisor (S1) that a student intern in Police Service was being paid as a
clerk. Complainant asserts that she has an issue with the intern working in Police Service
because she has inquired on a number of occasions about working in Police Service and even
applied for a Police Officer position, to no avail. C1 states that his department does not have a
clerical position other than his direct assistant who has been there for many years. C1 also
notes that as part of a nationwide college student program, he was offered a student intern for a
period of time who was assigned a variety of tasks, including clerical work. However, this
intern is not occupying any clerk position in Police Service.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. An issue of fact is "genuine" if the evidence is
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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. For
the reasons that follow, we conclude that there were no material facts in dispute.
Reprisal

Complainant filed four prior EEO complaints, the most recent in March of 2006. The AJ
concluded that Complainant failed to present a causal connection between the actions
complained of herein and her prior EEO activity. Specifically, the AJ found that the
undisputed record shows that Complainant's office, as well as the offices of other employees,
with no prior EEO activity, were moved to the second floor so as to provide sufficient space
for AMVETS service representatives. In addition, the AJ notes that Complainant did not
present any evidence, direct or circumstantial, showing that the move was in reprisal for her
prior EEO activity.

With respect to Claim 2, the AJ notes that the record is devoid of evidence in support of the
assertion that the vacancy announcement was cancelled and reposted because of Complainant's
prior EEO activity. The AJ further notes that the two other candidates on the referral
certificate did not have prior EEO activity, but were similarly affected by the cancellation of
the original posting.

With respect to Claim 3, the AJ concludes that the undisputed record shows that the Human
Resources Specialist who was responsible for deeming Complainant "not qualified" was not
aware of Complainant’s prior EEO activity. Lastly, aside from Complainant’s uncorroborated
assertions, the undisputed record shows that an intern was working in Police Service as part of
a national program and was not being paid by the Police Service at all.

Age & Sex Discrimination

The AJ also concluded that Complainant presented no evidence, direct or circumstantial, to
show that her age and/or sex were factors in the Agency's actions. In addition, the AJ noted
that Complainant failed to identify comparative employees, not within her protected group(s),
who were treated more favorably with respect to any claim.

Upon review of the record, we agree with the AJ’s findings of fact and conclusions of law.
We conclude that aside from Complainant’s bare assertions, she fails to present evidence of
pretext or discriminatory/retaliatory animus on the part of any responsible management
official. With respect to Claim 1, Complainant asserts that she works directly one on one with
veterans at times, but does not rebut the Agency’s legitimate, non-discriminatory reason for
moving her office. With respect to Claim 2, we note that Complainant does not present
evidence that the Human Resources Specialist assigned to the second vacancy announcement
treated individuals outside Complainant’s protected classes differently or was motivated by
discriminatory or retaliatory animus. With respect to Claim 3, the record is devoid of
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evidence that Complainant provided the KSAs within the proscribed timeframe. Finally, with
respect to Claim 4, the record is devoid of evidence that the student intern occupied a clerk
position or that such a position even existed.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s decision adopting the AJ’s findings of 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).
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.
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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

Date
March 14, 2014