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

Equal Employment Opportunity Commission

Aug 14, 2015

01-2015-0261-0500 (E.E.O.C. Aug. 14, 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. 0120150261

Hearing No. 440-2012-00044X

Agency No. 200J-V112-2011103304

DECISION
Complainant filed an appeal from the Agency’s final order dated August 19, 2013, finding no
discrimination with regard to her 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. For the following reasons, we AFFIRM the Agency’s final order finding no
discrimination.

BACKGROUND
In her complaint, dated July 13, 2011, which was later amended, Complainant alleged
discrimination based on race (African American), age (over 40), and sex (female) when:

(1) On August 11, 2011, she was notified she was not selected for the position of
Human Resources Specialist (Classification), GS-0201-7/12, under Announcement
Number STA-11-144-485715-ML;
(2) On October 5, 2011, she became aware that she was not selected for the position of
Human Resources Specialist (Suitability), GS-0201-7, under Announcement
Number MP-11-133-533138-HN; and
(3) On October 12, 2011, she became aware that she was not selected for the position
of Human Resources Specialist (Recruitment and Placement), GS-0201-07, under
Announcement Number STA-11-591-525072-JB.
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Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On July 15, 2013,
the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s
final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists. Moreover, despite Complainant’s contentions on appeal, we find the
record was fully developed.
In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged nonselections. During the relevant time period at issue, Complainant
was employed as a Human Resources Assistant, GS-06, at the Agency’s Medical Center
located in Hines, Illinois.

With regard to claim (1), the Selecting Officer (SO1), Human Resources Coordinator and
Network Manager, indicated that Complainant applied and qualified for the position at issue
and was referred to an interview panel. Three interview panelists asked all applicants,
including Complainant, the same questions and gave numerical points for their responses.
After the interview, the panelists added all the points and the selectee received the total points
of 239 and Complainant received the total point of 170. The panelists stated that
Complainant’s interview responses were short and not detailed. Based on the total points, the
panelists recommended the selectee who was ultimately selected by SO1.

With regard to claim (2), the Selecting Officer (SO2), Human Resources Officer at the
Agency’s Hines Medical Center, indicated that his staff in Human Resources Office rated all
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applicants and completed a certificate for the position at issue, i.e. a Human Resources
Specialist (Suitability). Complainant was qualified for the position at issue. SO2 stated that
SO2 selected the selectee who was working as a Suitability Assistant and already had
experience working with background investigations and security clearance of which SO2 was
looking for.

With regard to claim (3), the Selecting Officer (SO3), Human Resource Officer at the
Agency’s Jesse Brown Medical Center, stated that the position at issue was posted at four
different grade levels, GS-12, GS-11, GS-9, and GS-7. SO3 indicated that SO3 and a Deputy
Human Resources Officer first reviewed the GS-12 and GS-11 applicants but did not find any
satisfactory applicant and they then reviewed the GS-9 applicants and ultimately selected the
selectee, who was a Human Resources Assistant (Recruiting and Staffing), CG-7, Federal
Deposit Insurance Corporation, for the position at issue. SO3 stated that Complainant was a
GS-7 applicant and none of the GS-7 level applicants was considered for the position.

We agree with the AJ that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for not selecting Complainant for the positions. Furthermore,
Complainant failed to show that her qualifications for the positions were plainly superior to the
selectees’ qualifications. See Wasser v. Department of Labor

, EEOC Request No. 05940058
(November 2, 1995). Based on the foregoing, we find that Complainant has failed to show
that the Agency’s action was motivated by discrimination as she alleged.

CONCLUSION
Accordingly, the Agency’s final order finding no discrimination 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
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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

August 14, 2015
Date