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

Equal Employment Opportunity Commission

Feb 12, 2015

0120120234 (E.E.O.C. Feb. 12, 2015)

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. 0120120234

Hearing No. 480-2011-00053X

Agency No. 200P-00570-2010100701

DECISION
On October 18, 2011, Complainant filed an appeal from the Agency’s September 12, 2011
final order concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967, 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 Program Support
Assistant, GS-6, in the Hematology/Oncology Department at the Agency’s work facility in
Fresno, California. On March 18, 2010, Complainant filed an EEO complaint wherein she
claimed that the Agency discriminated against her on the bases of her disability and age (62)
when she was not selected for the position of Administrative Support Assistant, GS-07. 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. Over Complainant's objections, the AJ
assigned to the case granted the Agency’s Motion for Summary Judgment and issued a decision
on August 29, 2011.

The AJ found that no discrimination occurred. The AJ observed that the position was initially
opened to permanent Agency employees in the Central California Health Care System and
Veterans Employment Opportunity Act eligibles. Subsequently, the position was re-announced
and opened to external applicants. The record reveals that Complainant and two other internal
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candidates were interviewed by a four-member panel pursuant to the first vacancy
announcement. Four external applicants were interviewed from the second vacancy
announcement by three members of the same interview panel. The selecting official stated that
Complainant and the selectee were qualified for the position. According to the selecting
official, he made his selection after consulting with the panel members. The selectee was a
30% disabled veteran with a ten-point veteran’s preference. She was ranked number one by
the panel members, and Complainant was ranked third. Complainant received an overall score
of 5, 5, 6, and 2 from the panel members and the selectee received scores of 8, 8, and 9. The
AJ noted that Complainant was not a disabled veteran with a ten-point preference.

The selecting official stated that he chose the selectee based on her being the highest ranked
candidate; she answered the questions with the greatest degree of specificity and she had
administrative experience in the military. The selecting official emphasized that the selectee
demonstrated to the panel a working knowledge of the Excel computer program. The AJ
observed that the panel members inquired about the candidates’ technical knowledge and skill
in utilizing computer programs (MS Word, Excel, Power Point, etc.) and rated Complainant 6,
6, 6, and 5, respectively. The selectee was rated 7, 7, and 8, respectively for the same
question.

With respect to Complainant’s claim of disability discrimination, the AJ found that
Complainant did not establish that the Agency was aware that she is an individual with a
disability. The AJ stated that Complainant did not submit medical documentation of a
diagnosis, prognosis, or an accommodation request for an impairment. According to the AJ, a
two-hour leave request for an appointment at a medical clinic is not sufficient to establish that
the selecting official knew, was on notice, or considered Complainant to have a disability.

With regard to the age discrimination claim, the AJ noted that the selectee was substantially
younger than Complainant and found that Complainant established a prima facie case of age
discrimination. The AJ further found that the Agency articulated legitimate, nondiscriminatory
reasons for its selection decision. With regard to Complainant’s argument of pretext, the AJ
noted that Complainant contended that she was proficient in Excel and the selecting official
knew that based on her work on a Cancer Care Collaborative project utilizing the Excel
program. The AJ reasoned that Complainant has not provided evidence that would alter the
outcome of this matter given that the selectee was the highest rated candidate, she is a veteran
and Complainant is not, and the Agency’s policy of giving extra points to a preference-eligible
veteran is a legitimate, nondiscriminatory policy. 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.

CONTENTIONS ON APPEAL
Complainant challenges the credibility of the selecting official. Complainant maintains that the
selecting official was inconsistent in the reasoning he gave for his selection decision.
According to Complainant, on September 17, 2010, the selecting official stated that the
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specific skill which the selectee possessed was that she is more competent in the performance
and utilization of the Microsoft Office programs. Complainant states that at his deposition on
March 21, 2011, the selecting official stated that the specific skill was that the selectee knew
how to use Excel, a computer program that the selecting official knew Complainant knew how
to use. Complainant states that the list of questions posed to her did not include an inquiry
about her knowledge of Excel, unlike the interview with the selectee. Complainant notes that
in June 2009, the selecting official praised her on a project where she utilized Excel.
Complainant further contends that the selecting official wanted to save money as the selectee
was not brought in as a GS-7, but rather started as a GS-6, Step 1.

In response, the Agency asserts that Complainant did not present evidence that her credentials
were observably superior to those of the selectee. The Agency also references the higher
scores issued to the selectee by the panel members.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a summary judgment decision when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.
We shall assume arguendo that Complainant established a prima facie case of age and disability
discrimination. The Agency explained that Complainant was not selected because the selectee
was higher ranked by the interview panel and the selectee also had a ten-point veteran’s
preference. In particular, the selectee’s technical skill in the Microsoft Office programs,
including Excel, was cited as an important factor in her selection. We find that the Agency
articulated legitimate, nondiscriminatory reasons for its selection.

In a nonselection case, pretext may be shown by a showing that Complainant’s qualifications
are observably superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). Complainant attempts to establish pretext by citing her ability in the Excel
Program and discrepancies in the explanation offered by the selecting official. Complainant’s
skill in the Excel Program however does not negate the selecting official’s judgment that the
selectee had greater proficiency in that area. In contrast to Complainant’s contention, we do
not discern any glaring inconsistencies in the selecting official’s statements as to why he chose
the selectee. It is evident that the selectee’s skill in Microsoft Programs in general was an
important factor in her selection. It is apparent that the selectee had attributes that justified her
selection and that Complainant’s credentials were not observably superior to the selectee’s
credentials so as to warrant a finding of pretext. Further, the selectee had a ten-point veteran’s
preference. We also are not persuaded that the decision to expand to an external job search
was attributable to discriminatory motivation. We find that Complainant has failed to establish
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that the Agency’s explanation was pretext to mask discriminatory intent and thus we find that
her nonselection was not attributable to age or disability discrimination.

CONCLUSION
The Agency’s determination in its final order that no discrimination occurred 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.
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
February 12, 2015