Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 15, 2015

01-2013-2227-0500 (E.E.O.C. May. 15, 2015)

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. 0120132227

Hearing No. 461-2012-00039X

Agency No. 2003-0116-2011103449

DECISION
On May 8, 2013, Complainant filed an appeal from the Agency’s May 7, 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. 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). For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND
Complainant worked as an Information Technology (IT) Specialist at the Agency’s Medical
Center in Alexandria, Louisiana. She applied for promotion to the position of Supervisory IT
Specialist, but was informed that another candidate has been selected. On June 27, 2011,
Complainant filed an EEO complaint in which she alleged that her supervisor, the Chief
Information Officer, in his capacity as the selecting official (SO) had discriminated against her
on the bases of race (African-American), color (Black), and age (48) by not selecting her. At
the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of
the investigative report (IR) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge. Complainant timely requested a
hearing but subsequently withdrew her request. Consequently, 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.

0120132227

2
The selection process consisted of two phases. In the first phase, a review panel consisting of
three supervisors convened to review the application packages and conduct an initial interview
of the candidates. The Human Resources referred six applicants to the panel, of whom five
were interviewed. Complainant, the eventual Selectee and two other candidates were referred
to the SO. On the basis of their interviews and their review of the written applications, the
panelists collectively awarded Complainant a score of 131 and the Selectee a score of 138.
The lead panelist averred that the Selectee was the top candidate, noting that Complainant had
answered some of the questions incorrectly. The panelists unanimously recommended the
Selectee to the SO. IR 182-86, 192-93, 201-02, 292, 295-96, 315-20, 323, 364, 354-57, 416.
In the second phase, the SO himself interviewed all four candidates referred by the panel. He
ultimately agreed with the review panel’s conclusion, noting that Complainant’s answers to
some of his questions had been vague and general while the answers given by the selectee were
more substantial, more concrete, and more specific. He further testified that the Selectee’s
customer service skills and her previous experience as a lead clerk had given her the edge. IR
133, 162-69.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decisions involving selection of personnel
unless there is evidence of a discriminatory motivation on the part of the officials responsible
for those selections. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248,
259 (1981). Consequently, in order to prevail on her claim of disparate treatment in
connection with not being selected for the Supervisory IT Specialist position, Complainant
would have to prove, by a preponderance of the evidence, that the SO was motivated by
unlawful considerations of her race, color, or age when he selected the Selectee. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Such evidence can take the
form of a showing that Complainant’s qualifications for the position at issue were plainly
superior to those of the Selectee. Guida v. United States Postal Service

, EEOC Appeal No.
01923174 (April 15, 1993).
The SO’s stated reason for choosing the Selectee over Complainant is that although both
candidates were well qualified, the Selectee had performed better during the two interviews,
had received a higher rating from the panel than had Complainant, and had a stronger customer
service background. The SO’s testimony that the Selectee was better qualified than
Complainant has been corroborated by sworn statements from all three panel members and by
the notes and score sheets documenting the selection process. When asked by the investigator
why she believed that the SO passed over her because of her race, color, and age, Complainant
replied that there had been a history of Whites being promoted over Blacks at the Agency
dating back to 1991. IR 139-40. However, she has not presented any sworn statements from
other witnesses or documents that contradict the explanations provided by the SO and the
panelists, or which call the veracity of these officials into question. It is Complainant’s burden
to establish the existence of an unlawful motivation on the part of the responding management
officials by a preponderance of the evidence, and more is required to meet that burden than
merely expressing one’s belief. We therefore find, as did the Agency, that Complainant failed
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to satisfy her burden of proof as to the existence of a discriminatory motivation on the part of
the SO with respect to her nonselection for the Supervisory IT Specialist position at issue in
her complaint.

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

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
May 15, 2015