0120142506
05-07-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120142506
Agency No. 2003-0520-2013102483
DECISION
On June 25, 2014, Complainant filed a timely appeal from the Agency's May 14, 2014, final decision, which she received on May 27, 2014, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant, GS-5, at the Agency's Department of Veterans Affairs Health Care Services facility in Pensacola, Florida.1
On July 8, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
A. On March 25, 2013, USAJOBS notified Complainant that her application was incomplete for a job application for Lead Medical Support Assistant (GS-7), causing her to be ineligible for consideration for selection to the position. Complainant believed the Human Resources Specialist was responsible for the untimely submission.
B. On April 23, 2013, USAJOBS notified Complainant that in applying to a job application for Administrative Officer (GS-11), she was deemed ineligible for consideration. Complainant believed the Human Resources Specialist was responsible for the untimely submission.
In mediation, on July 15, 2013, Complainant signed and submitted a written Notice of Withdrawal of EEO Complaint, withdrawing the first claim (Claim A). Complainant confirmed this withdrawal in an email dated August 19, 2013. As a result of this withdrawal, the Agency dismissed Complainant's Claim A and accepted Complainant's second claim (Claim B).
The EEO investigator conducted interviews with Complainant, the Human Resources Specialist, who was responsible for making the eligibility determinations on USAJOBS, and the assigned Subject Matter Expert (SME), who is employed as Supervisor of Staffing and Recruitment of Human Resources Management Service.
The record reveals that 276 applicants applied for the position, 238 were found ineligible. One selection was made under a different announcement, at the GS-9 level with a target grade of GS-11. The record indicates that other than the instant case, Complainant had EEO cases in 2008 and 2012.
On December 6, 2013, the investigator conducted Complainant's interview. Complainant referred to prior EEO activity, specifically filing a complaint in 2008 regarding an application for a prosthetics position. When asked if the Human Resources Specialist was aware of Complainant's prior EEO activity, Complainant said she was not "sure she did, but if she looked in the record I'm sure...she might have knowledge. I don't know. I don't work down in Biloxi." When asked if the Human Resources Officer (HRO) was aware of Complainant's prior EEO activity, Complainant answered affirmatively because Complainant had met with HRO through mediation for prior problems. Complainant stated she had not been selected for several positions because of ineligibility and unsatisfactory submission of documents.
With respect to reprisal, Complainant said a combination of supervisors were responsible for reprisal, but did not name any specific people. Complainant also explained that those supervisors were not involved with the evaluation of her application in the instant case.
With respect to Complainant's race, Complainant conceded she did not know if the Human Resources Specialist was aware of Complainant's race. Complainant also stated that HRO became aware of Complainant's race during mediation. When asked if Complainant knew the race of the person who was selected for the position, she stated "African American."2
The investigator inquired into Complainant's application for the Administrative Officer position and Complainant conceded she did not include the required disability letter, though on her resume she wrote she had the document. Complainant explained that in her application, her DD214 form was blacked out due to a printing error, but that Human Resources should have a copy of the clear document in the system. Moreover, Complainant explained that she received an email declaring her ineligible, but there was no determination of qualification despite the fact that she "previously had determinations of GS-9."
When asked why she believed she was rated ineligible for the position, Complainant explained that "they" did not look at her records, even though she had all of the necessary paperwork, either included in the application or in previous applications that were in the system. Complainant also stated that USAJOBS normally sends an email notifying an applicant that her application is incomplete. Complainant previously received such notice in a prior application. Though Complainant stated in her complaint that HRO untimely submitted documents for the application, Complainant explained in her interview that she did not say that, but said "management should be aware of my disability as well as my DD214 if it wasn't a best copy."
On December 10, 2013, the investigator interviewed the Human Resources Specialist who made the eligibility and qualification determination in the instant case. The Human Resources Specialist stated she was unaware of any of Complainant's prior EEO activity and her race. In her explanation of the evaluation process, the Human Resources Specialist stated she started by looking at internal candidates who must provide their resume, most recent SF-50 (personnel action that shows the pay plan, series, grade and tenure). The Human Resources Specialist stated Complainant did not provide all of the proper information in her SF-50.
Because of this deficiency, the Human Resources Specialist stated, "I could not look at this applicant internally," and "had to look at external eligibilities." The Human Resources Specialist explained that Complainant's DD214 was mostly illegible, but she was able to determine that Complainant was honorably discharged and other factors. The Human Resources Specialist stated that within the USAJOBS system, Complainant claimed she was a 30 percent disabled veteran. However, Complainant did not provide a disability rating letter. When asked about qualifications lacking in Complainant's application, the Human Resources Specialist explained that in Complainant's history, she had provided a small amount of information regarding her experience in accounting and budgeting, did not include her salary, series, grade, hours, and other required components. Ultimately, Complainant's application lacked explanation of some of the essential required experience. Thus, the Human Resources Specialist, after looking at Complainant's resume, determined Complainant was ineligible. Finally, the Human Resources Specialist explained that the no one, including the HRO, is ever responsible for submitting documents and USAJOBS does not send any requests for additional information to applicants.
On December 11, 2013, the investigator interviewed the SME. The SME explained he had no responsibility regarding the ineligibility rating of Complainant. The SME knew of Complainant's prior EEO activity and was not aware of Complainant's race until he went to arbitration for a different ineligibility determination in July 2013. The SME reiterated much of the Human Resources Specialist's testimony.
The record reveals that the job announcement states in bold, "Incomplete applications will not be considered" and lists the requirements described by the Human Resources Specialist. Additionally, the announcement states that the applicant must either possess 1 year of specialized experience equivalent to the GS-9 level or possess 3 full years of progressively higher level graduate education leading to a degree. Complainant's resume lists her undergraduate education, a certification and a completed course. Moreover, in Complainant's listed experience, Complainant does not provide all required information such as salary, tenure, etc.
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 Equal Employment Opportunity Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
First, the FAD discussed Complainant's withdrawal of Claim A relating to Complainant having been found ineligible on March 25, 2013, for the Lead Medical Support Assistant position. The Agency dismissed Claim A because after Complainant withdrew the claim, she did not allege that her withdrawal was based on duress, mental incapacitation, coercion, mistake, or fraud.
Second, the FAD did not include a prima facie analysis of Complainant's claim of disparate treatment based on race and reprisal because management showed a legitimate, nondiscriminatory explanation for finding Complainant ineligible. Management's decision was, in large part, based on Complainant's lack of specialized experience for the GS-11 pay grade and Complainant's application was incomplete. The Agency found that Complainant failed to show that the explanation was pretext or actually based on prohibited discriminatory and/or retaliatory motives. With respect to Complainant's reprisal claim, the Agency found that there is no evidence of reprisal based on EEO activity "absent the complainant's insinuation."
On appeal, Complainant argues she met the eligibility requirements for the GS-11 position. Specifically, Complainant points to her application for Prosthetic Representative and the fact that the Agency previously found her qualified for a GS-9 position, even though she did not receive the position.
ANALYSIS AND FINDINGS
First, we briefly consider the Agency's procedural dismissal of Claim A. Complainant does not raise any issue regarding the withdrawal. The Commission finds that Complainant knowingly and voluntarily withdrew her complaint and thus, we consider the matter to have been finally resolved. See Tellez v. Department of Transportation, EEOC Appeal No. 01931822 (Feb.25, 1994).
Second, to prevail in a disparate treatment claim such as the instant claim, 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 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 on her bases of discrimination, including sex (sexual orientation) may be dispensed with here, 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).
The Agency provided substantive legitimate and nondiscriminatory reasons for finding Complainant ineligible for the position. Specifically, as discussed above, Complainant's application was incomplete and she failed to meet the minimum eligibility requirements for the position. Finally, Complainant provided no explanation or proof that the Agency's explanation was pretext for discrimination based on Complainant's race or in reprisal for prior EEO activity. Complainant only makes nonspecific references to Human Resources employees and only speculates that the Human Resources Specialist may know about her race and prior EEO activity. Finally, though Complainant asserts that the HRO knew of Complainant's race and prior activity, mere knowledge is not enough to support a pretext determination. Thus, Complainant fails to provide that the Agency's decision was pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD.
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. 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
May 7, 2015
__________________
Date
1 Complainant's duty location is in Pensacola, Florida. However, Complainant's complaint is against officials that made the eligibility determination in the Veterans Affairs Medical Center in Biloxi, Mississippi.
2 In the investigator's interview with the Human Resources Specialist, she stated that there were two selectees, one African American and the other Caucasian.
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0120142506
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120142506