Joni M.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 6, 2016

0120142771 (E.E.O.C. Jan. 6, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Joni M.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120142771

Hearing No. 420-2013-00177X

Agency No. 2001-0619-2012104000

DECISION

On July 30, 2014, Complainant filed an appeal from the Agency’s July 1, 2014 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. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Clinical Pharmacy Specialist at the Agency’s Medical Center in
Tuscaloosa, Alabama. On October 15, 2012, she filed an EEO complaint in which she alleged
that the Chief of the Pharmacy Unit, in her capacity as the Selecting Official (SO), and four
selection panel members (P1, P2, P3, P4) discriminated against her on the basis of race
(African-American) by not selecting her for a GS-13 Clinical Pharmacy Position.

Complainant, the Selectee, and four other candidates were interviewed for the position. The
candidates were evaluated by the four panelists on their written applications and on their
responses to a series of interview questions that were pertinent to the duties and functions of

1This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
0120142771

2
the position. Investigative Report (IR) 98, 175, 177, 181, 190. At the end of the process, the
Selectee received the highest combined score of 86 out of a possible 100 while Complainant
received the second-highest combined score of 84. The selectee was white. IR 98, 167, 170,
191.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Although Complainant timely requested
a hearing, the AJ assigned to hear the case dismissed her request as a sanction for her failure to
comply with his orders pertaining to discovery. On December 30, 2013, upon remand from
the AJ, the Agency issued a decision finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving personnel selections
unless there is evidence of a discriminatory motivation on the part of the officials responsible
for those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248,
259 (1981). Therefore, in order to prevail on her claim of disparate treatment in connection
with her not being selected for the GS-13 Clinical Pharmacist position, Complainant would
have to prove, by a preponderance of the evidence, that SO, P1, P2, P3, and/or P4 were
motivated by unlawful considerations of her race at the time they made the decision to promote
the selectee. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).

In a circumstantial-evidence case such as this, Complainant can prove her case by submitting
sworn statements or documents tending to show that the articulated reasons for taking the
action at issue are a pretext. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993)
citing Burdine, 450 U.S. at 253. In nonselection cases, proof of pretext can take the form of a
showing that Complainant’s qualifications for the position were plainly superior to those of the
selectee. Hung P. v. Department of Veterans Affairs, EEOC Appeal No. 0120141721
(December 3, 2015). Such proof can also include evidence of discriminatory statements or past
personal treatment attributable to the SO or the panel members, comparative or statistical data
showing differences in treatment across racial lines, unequal application of Agency policy,
deviations from standard procedures without explanation or justification, or inadequately
explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal
Service, EEOC Appeal No. 0120141697 (November 12, 2015).

Complainant did present some evidence of a deviation from the normal selection procedures in
the form of an affidavit from P4, who testified that the panelists would typically meet as a
group and discuss the candidates before the final selection was made, and that that practice was
not adhered to in this particular situation. P4 also averred that Complainant’s interview
responses were better than the Selectee’s. IR 141-42. The SO and the other panelists,
however, came to the conclusion that although Complainant and the Selectee were the two best
qualified candidates, the Selectee had a slight edge by virtue of having had five years of
0120142771

3
clinical experience as a Pharmacist, while Complainant had only two years of pharmacy
experience. IR 85-86, 111, 121, 131-32. Therefore, on the balance of the evidentiary record,
we find, as did the Agency, that while Complainant was extremely well-qualified for the
position, her qualifications were not plainly superior to those of the selectee.

We therefore agree with the Agency that Complainant failed to establish the existence of an
unlawful motive on the part of the responding management officials with respect to her
nonselection for the GS-13 Clinical Pharmacist position.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 Chap. 9 § VII.B (Aug. 5, 2015). 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).

0120142771

4
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 Complainant’s 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

January 6, 2016
Date