0120083371
12-12-2008
Diana Ross, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Diana Ross,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083371
Agency No. 200H-0630-2007103267
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 25, 2008 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.
During the period at issue, complainant was employed as a Medical
Instrument Technologist, GS-8, at the agency's Brooklyn Veterans Affairs
Medical Center in Brooklyn, New York.
On August 20, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against her
on the basis of reprisal for prior EEO activity when management did
not approve her for a promotion by upgrade of her current position as a
Medical Instrument Technologist, GS-8 through the process of conversion
to a Hybrid Title 38, GS-9 position.
Specifically, complainant alleged that an identified board member (B1) on
the selection board influenced the board's decision not to promote her.
Complainant further alleged that during the relevant time, the board
received an outdated position description for her position which led to
its decision not to promote her.
At the conclusion of investigation, complainant was provided with a copy
of the report of the investigation and notice of the right to request a
hearing before an EEOC Administrative Judge or a final decision within
thirty days of receipt of the correspondence. Complainant did not
respond. On June 25, 2008, the agency issued the instant final decision.
In its June 25, 2008 final decision, the agency found no discrimination.
Specifically, the agency found that complainant did not establish a
prima facie case of reprisal discrimination. The agency further found
that management articulated legitimate, nondiscriminatory reasons
for its actions which complainant failed to show were a pretext for
discrimination.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (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. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The record contains an affidavit from the Human Resources Specialist
(HRS). Therein, HRS stated that the former Assistant Chief (AC) of
Human Resources coordinated the selection process for the position of
Hybrid Title 38, GS-9. HRS stated that the board was in compliance with
the guidelines used in making their recommendations for the subject
position. Specifically, the HRS stated that the board "compared the
functional statement of the employee to the qualification standards and
determined that the position was set at the appropriate grade according
to the standards." HRS further stated that she was not involved in the
selection process "at this time. I only became involved after [AC] left
the VA and I was asked to act as the new coordinator, at this point the
selections had been made already. My understanding is that services
made recommendations along with any self nominations from employees
to [AC]. All board members were cleared with the employee's service
prior to appointment." HRS stated that the board members reviewed the
following documents: board action; employee qualification update sheet;
functional statement; and qualification standard for the employee's
position in making their determination for recommendations. HRS stated
that the board reconsidered complainant's paperwork once her outdated
description came to light. Furthermore, HRS stated that complainant
was treated the same as other candidates for the subject position.
With respect to complainant's allegation that B1, who was involved
in her prior protected activity, influenced the decision of the board
not to convert her position to a Hybrid position, GS-9, HRS denied it.
Specifically, HRS stated, "Absolutely not. I was present during the
review of [B1's] paperwork and the alleged board member conducted himself
in a professional manner and did not influence the board to make any
inappropriate decisions."
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has adduced
no evidence to show that these reasons were instead a pretext for
discrimination.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
December 12, 2008
Date
2
0120083371
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120083371