0120132104
09-09-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120132104
Agency Nos. 2001-0316-2012-103592, and 2001-0316-2012-103592
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 28, 2013, final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 Agency's final agency decision (FAD) which found that Complainant did not demonstrate that she was subjected to discrimination is AFFIRMED.
ISSUE PRESENTED
Whether Complainant was subjected to discrimination when she was written up for quality review errors and when she was nonselected for the Authorization Quality Review Specialist position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rating Veteran Service Representative, GS-12 at the Agency's facility in Atlanta, Georgia. On May 8, 2012, and July 20, 2012, Complainant filed formal complaints alleging that the Agency discriminated against her on the bases of race (African-American), national origin (American), sex (female), disability (physical), age (45), and reprisal for prior protected EEO activity when:
1. She received quality review errors on March 13, 2012, March 19, 2012, May 3, 2012, and June 20, 2012; and
2. She was referred but not selected for the position of Authorization Quality Review Specialist, GS-13, Vacancy Number 316-12-96-RU573158.1
Following an investigation by the Agency, Complainant requested a FAD. The FAD found that Complainant did not demonstrate that she was subjected to discrimination. Specially, the FAD found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions, namely that with respect to claim 1, management explained that five reviews where conducted every month on employees in the same position held by Complainant, and errors were noted every month on claims prepared by all of the employees. Management indicated that this process was based strictly on VA policies and regulations on processing veterans' claims. Moreover, it was noted that there was a reconsideration process in place if an employee disagreed with the supervisor's error finding. Complainant did not request any reconsideration of her quality review errors. Management explained that these monthly checks were routine and had nothing to do with Complainant's protected bases.
With respect to claim 2, management indicated that Complainant was not selected for one of the five Authorization Quality Review Specialist positions because she was not the best qualified for the position. Management explained that fifteen candidates were interviewed and rated. Complainant was ranked 13th out of 15 candidates. The five selected candidates received the highest scores of all candidates based on their interviews and written exercises. It was noted that Complainant performed poorly during the interview and written exercise as compared to the other candidates. Moreover, unlike the selectees, Complainant did not have prior experience as an authorizer or trainer. Again, management maintained that Complainant's protected bases were not considered with regard to the selection for this position.
To show pretext, Complainant argued that an older Black woman also made errors but quality review errors were not written up against her. The Agency discounted Complainant's argument, and explained that Complainant was not specific with her claim and did not indicate how she knew this was the case. The Agency maintained that Complainant's mere assertion was not enough to show that the Agency's articulated nondiscriminatory reasons were a pretext for discrimination. The FAD found that Complainant failed to demonstrate that she was subjected to discrimination on any bases.
CONTENTIONS ON APPEAL
Complainant did not file a brief on appeal. The Agency requests that its FAD be affirmed.
ANAYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that even if we assume arguendo that Complainant established a prima facie case of reprisal and discrimination as to all of her bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, with respect to claim 1, Complainant's errors were noted as part of a monthly review program and regarding claim 2, Complainant was not selected for the position because she was not ranked within the top five candidates. We find that Complainant offered no evidence which suggested that discriminatory animus was involved in the Agency's decision making. Accordingly, we find the preponderance of the evidence of record does not establish that discrimination occurred.
The Agency's FAD is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__9/9/15________________
Date
1 In a Notice of Partial Acceptance, dated June 27, 2012, the Agency dismissed Complainant's claim concerning disapproval of her request for reassignment to another team on February 28, 2012. The Agency dismissed this claim in accordance with 29 C.F.R.�1614.107(a)(1) for raising a matter that was the same as one pending or previously decided by the Agency. Specifically, this action was raised in complaint, 2001-0316-2012101593 and the complaint was settled on March 8, 2012. Furthermore, in a Notice of Partial Acceptance, dated August 16, 2012, the Agency dismissed Complainant's claims concerning nonselections on May 21, 2012, and May 24, 2012, in accordance with 29 C.F.R.�1614.107(a)(1), for failure to state a claim as she withdrew her application for the May 21, 2012 position and no selections were made for the May 24, 2012 position. The Commission notes that Complainant does not dispute the Agency's dismissal of these matters on appeal; therefore, they will not be addressed further in this decision.
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