0120111803
12-12-2012
Donna J. Gonzalez, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Donna J. Gonzalez,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111803
Hearing No. 440-2009-000-00084X
Agency No. 200J-0556-2008103558
DECISION
On February 11, 2011, Complainant filed an appeal from the Agency's January 11, 2011, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant, GS-7, at the Agency's North Chicago VA Medical Center in Illinois.
Complainant filed an EEO complaint dated August 15, 2008, alleging that the Agency discriminated against her on the bases of sex (female) and age (50) when: on May 20, 2008, Complainant was advised that she was not selected for the position of Program Specialist (Patient Advocate), GS- 7/9, announced under vacancy no. 08-19-NC.
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 timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's for motion for a decision without a hearing. The AJ issued a decision without a hearing on December 13, 2010.
In his decision, the AJ assumed Complainant established a prima facie case of discrimination. The AJ found the Agency articulated legitimate, non-discriminatory reasons for Complainant's non-selection. The AJ noted that the Selecting Official was presented with three different certificates for the position at issue. The AJ noted the certificates were based on what the particular applicant was applying for: (1) a merit promotion to the GS-7 grade, (2) a merit promotion to the GS-9 grade, and (3) a Non-Competitive reassignment to the GS-7 grade or change to a lower grade at the GS-7 level. The AJ noted that the Selecting Official chose to interview from two of the certificates of eligibles for the Patient Advocate Position (Merit Promotion to Grade 7 and Merit Promotion Candidates to Grade 9). The AJ noted Complainant's name was not on either of these certificates.
The AJ noted Complainant argued that even though she was actually considered for the position at issue, she believed that she should have also been qualified for the Merit Promotion Certificate and should not have been placed on the Non-Competitive Eligible referral list. The AJ found the evidence clearly established that Complainant's name was inadvertently not included on the certificate of eligibles for a merit promotion to the GS-9 level. However, the AJ found no evidence that Complainant's name was left off the additional list because of some discriminatory animus.
The AJ noted Complainant advanced many reasons for her not being selected, from the Selecting Official being threatened by Complainant's vast experience and enormous knowledge to the Selectee being married to someone who worked with the Human Resources division. The AJ noted that while the evidence did not support any of the reasons suggested, each of the reasons advanced by Complainant could be entirely true but did not establish that Complainant was not selected because of any discriminatory animus. Rather, the AJ noted the facts show that Complainant was not selected because she was not on any of the certificate of eligibles the Selecting Official reviewed to determine who would be interviewed and ultimately be selected for the position. The AJ found that not being placed on a particular certificate is unfortunate and even perhaps negligent but it is not discriminatory.
The Agency subsequently issued a final order on January 11, 2011. The Agency's final order fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
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 for 29 C.F.R. Part 1614, Chap. 9, � VI.A. (Nov. 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").
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
Upon review, we find the AJ's issuance of a decision without a hearing was appropriate as there are no genuine issues of material fact in dispute nor are there are any credibility determinations at issue. In the present case, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions, that Complainant was not selected because she was not on the certificate of eligibles for a merit promotion to the GS-9 level. While Complainant's name was not included on the certificate of eligibles for a merit promotion to the GS-9 level, we find no evidence that Complainant's name was left off this list because of discriminatory animus. With regard to her contention that the Agency decided to pre-select the Selectee, we note that pre-selection itself does not constitute prohibited discrimination. Moreover, we find that Complainant failed to show by a preponderance of evidence that the Agency's actions were a pretext for discrimination.
CONCLUSION
Accordingly, the Agency's final order 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 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 (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
December 12, 2012
__________________
Date
2
01-2011-1803
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111803