Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 11, 2015

0120123109 (E.E.O.C. Mar. 11, 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
(Veterans Health Administration),
Agency.

Appeal No. 0120123109

Hearing No. 570-2011-00371X

Agency No. 2004V1062010103348

DECISION
Complainant filed an appeal from the Agency’s July 12, 2012 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. For the following reasons, the Commission AFFIRMS the Agency’s Final
Order finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nurse Clinician at
the Agency’s Durham Veterans Affairs Medical Center facility in Durham, North Carolina. On
July 6, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of race (African-American)1

when:
On April 22, 2010, Complainant was not selected for the position of Nurse IV (Health
Education Program Manager), vacancy announcement number VISN6-10-T38-001.

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 requested a hearing and the AJ held a hearing on
May 8, 2012, and issued a decision on June 18, 2012.

1 Complainant withdrew age as a basis of discrimination prior to the time of the hearing of her
complaint before the Administrative Judge.
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In her Decision, the AJ found that Complainant established a prima facie case of race
discrimination. Specifically, the AJ found that Complainant applied for the identified position,
Complainant was found qualified for the position, and the Agency selected another candidate,
outside of Complainant’s racial group. The AJ further found that the selecting official, SO,
articulated legitimate, nondiscriminatory reasons for her selection. Specifically, the AJ
considered the Selecting Official’s (SO) expressed desire to select a candidate with very strong
program management expertise, direct veteran education experience, and a candidate who
understood rural communities. The AJ noted that SO did not conduct interviews and that she
only reviewed the application materials to make her selection. The AJ found that SO
determined that Complainant was well qualified. SO found, however, that the selected
candidate, C1, demonstrated in her application materials, that C1 possessed a deep level of
understanding of veteran health education, rural care, and also demonstrated her level of
program management experience.

The AJ found that in her review of Complainant’s application materials, SO was able to
determine that Complainant was Black. C1, with whom the record shows SO had worked, is
Caucasian. The AJ considered Complainant’s contention that because C1 did not submit
narrative answers to the knowledge, skills, and abilities (KSA’s) identified in the vacancy
announcement, C1’s qualifications could not be readily determined from her application
materials and compared to Complainant’s qualification in the same areas. Complainant states
that her qualifications are plainly superior because she did submit KSA answers while C1
submitted proposals and articles that did not indicate whether the proposal was implemented,
whether the program was successful, or whether C1 was the author of the submitted articles.
The AJ also considered Complainant’s contention that SO’s failure to conduct interviews (when
the vacancy announcement indicated interview performance would be considered in the
selection process), as well as SO’s destruction of her own notes, called into question SO’s
selection process. The AJ found that neither the absence of SO’s notes or C1’s failure to
include KSA narrative answers proved that SO’s reasons were a pretext to mask
discrimination. The AJ found that Complainant did not show that her qualifications were
plainly superior to those possessed by C1.

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.

On appeal, Complainant states that the AJ erred in not sanctioning the Agency for failing to
preserve SO’s crediting plan, notes, and scores assigned to the candidate applications.
Complainant points out that SO admits that she shredded these items after making her
selection. Complainant states that the evidence contained in the two applications does not
support SO’s determination that C1 was more qualified than Complainant.

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ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he or she 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). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks

, 509 U.S. 502, 519 (1993).
In the instant case, we find substantial evidence supports the AJ’s Decision finding no
discrimination. The record shows that SO believed C1’s experience and achievements were
more relevant to the position SO was tasked to fill, and that Complainant’s experience with
veteran’s health education was more distant. We find the record supports the AJ’s
determination that SO articulated legitimate, nondiscriminatory reasons for her selection.

We note that in an attempt to prove pretext, Complainant states that her qualifications are
“plainly superior” to those of the selectee, C1. After carefully reviewing the evidence, we
find that Complainant failed to establish that her qualifications were plainly superior to those of
the selectee. See Patterson v. Dep’t of the Treasury

, EEOC Request No. 05950156 (May 9,
1996).
We decline to disturb the AJ’s denial of Complainant’s request for sanctions though we find
the deliberate destruction of documents created during the selection process to be troubling.
In this case, we consider whether SO’s notes, scores, and crediting plan indicated that
Complainant outscored C1 on the initial review of the application materials. We note that the
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application materials of all of the candidates do appear in the record and that SO states she did
not follow any merit promotional plan. Additionally, SO denies that she relied on the scores
she assigned beyond the determination of the top scoring candidates, after which she reviewed
the resumes of the top candidates again. We find no dispute that Complainant was well
qualified for the identified position as SO acknowledged at the hearing. Even so, an employer
has discretion to choose among equally qualified candidates, provided the decision is not based
upon unlawful criteria. See Texas Dep’t of Community Affairs v. Burdine

, 450 U.S. 248, 259
(1981).
We further concur with the AJ that the absence of interviews does not indicate pretext. We
find no evidence that SO was required to conduct interviews and that her failure to do so
indicates the selection process was less than genuine. Additionally, we find no evidence that
candidates were required to submit KSA answers and that their applications would be
considered incomplete without them. Therefore, we find that complainant failed to prove she
was discriminated against when she was not selected for the position.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Order, finding 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.
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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

Date
March 11, 2015