Constance M. Callahan, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 14, 2007
0120072357 (E.E.O.C. Sep. 14, 2007)

0120072357

09-14-2007

Constance M. Callahan, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Constance M. Callahan,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120072357

Agency No. 200H-0670-2005100266

DECISION

On June 30, 2005, complainant filed an appeal from the agency's May 26,

2005, 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. The appeal is deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

affirms the agency's final decision.

At the time of events giving rise to this complaint, complainant

worked as a Part Time (0.75 FTE) Respiratory Therapist, GS-601-8, in

Respiratory Therapy at the VA Healthcare Network in Syracuse, New York.

She had held that position for the previous 18 years. In July 2004,

she sent management an e-mail requesting that she become a fulltime

employee. The agency therefore considered complainant for the fulltime

Registered Respiratory Therapist (RRT), GS-601-7/8, position that was

advertised under Vacancy Announcement No. 528E-04-111. Complainant was

interviewed for the position in September 2004, but was not selected.

Two male candidates were selected for the positions.

On November 29, 2004, complainant filed an EEO complaint alleging

that she was discriminated against on the basis of sex (female) when,

on September 29, 2004, she learned that she was not selected for the

aforesaid position.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). In accordance with

complainant's request, the agency issued a final decision pursuant to

29 C.F.R. � 1614.110(b) concluding that complainant failed to prove

that she was subjected to discrimination as alleged. The agency found

that complainant established a prima facie case of sex discrimination.

However, it further determined that management articulated legitimate,

nondiscriminatory reasons for selecting the two male candidates,

and that complainant failed to show that those reasons were pretext

for discrimination. It is from that decision that complainant now

appeals.

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

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 Construction

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. Texas Department

of Community 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 (2000); St. Mary's Honor Center v. Hicks,

509 U.S. 502, 519 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the

third step of the McDonnell Douglas analysis, the ultimate issue of

whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. United States

Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990).

For the purposes of this decision, the Commission assumes that complainant

established a prima facie case of sex discrimination. Therefore, the

burden shifts to the agency to articulate a legitimate, nondiscriminatory

reason for its action. We find that the agency has met its burden.

Specifically, three responsible management officials averred that the two

male candidates were selected based upon their interviews, their expressed

interest for cross-training in overnight polysomnography (sleep lab), and

their flexibility in scheduling to participate in training. The record

further reveals that the two male candidates received interview scores

of 267 and 288, whereas complainant received a score of 198.

Since the agency articulated legitimate, nondiscriminatory reasons for

its action, the burden returns to complainant to demonstrate that the

agency's articulated reasons are unworthy of belief. The Commission

finds that complainant has failed to meet her burden and show that

the agency's reasons were untrue. Instead, she acknowledged that she

considered the interview process to be a formality because she already

worked as a Part Time Respiratory Therapist with the agency. Moreover,

she does not deny that she had no interest in cross-training in overnight

polysomnography. For the foregoing reasons, the Commission finds that

complainant has failed to present sufficient evidence to establish that

the agency discriminated against her on the basis of sex when it did

not select her for the fulltime RRT position.

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we affirm the agency's

final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

___9/14/07_______________

Date

2

0120072357

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120072357