0520110419
10-18-2011
Magda I. Alvarez, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, (Veterans Health Administration), Agency.
Magda I. Alvarez,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
(Veterans Health Administration),
Agency.
Request No. 0520110419
Appeal No. 0120110156
Hearing No. 510-2009-00284X
Agency No. 200I06722008104220
DENIAL
Complainant timely requested reconsideration of the decision in Magda
I. Alvarez v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120110156
(Mar. 25, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
The previous decision affirmed the Agency’s final decision, finding no
discrimination on the basis of age (45) when the Agency did not select
Complainant for one of the 15 available positions of Clinical Pharmacist,
GS-12, under Vacancy Announcement No. T-38-07-163. The previous
decision assumed that Complainant established a prima facie case of
disparate treatment on the basis of age, and found that Agency officials
articulated legitimate, nondiscriminatory reasons for not selecting her.
Specifically, two panel members testified that Complainant was not chosen
because of her low combined score in answering clinical-case questions
and performance-based interview questions. Complainant argued that
the Agency’s reasons were a pretext because (1) five of the selectees
were younger, pharmacy residents who received preferential treatment in
that they did not have to take the test that Complainant had to take;
(2) the Agency deviated from the relevant provisions of the collective
bargaining agreement in promoting the pharmacy residents.
The previous decision found that Complainant did not sufficiently
establish that the Agency’s articulated reasons were a pretext to mask
a discriminatory motive.
In her request to reconsider, Complainant argues that she was qualified
for all of the 15 available positions under this vacancy announcement
in that she had a doctoral degree in pharmacy, worked for over 15 years
as a pharmacist, and took a written test, but rather than hire her,
the Agency filled 5 of those 15 vacant positions with younger pharmacy
residents, who had just completed their residency training and were not
required to go through the interview process or take the written test.
Complainant maintains that the Agency’s articulated reason for hiring
those residency pharmacists, i.e., it was following the provisions of
the collective bargaining agreement, was a pretext because the Agency
failed to produce sufficient documentary evidence to show that it had
adhered to the collective bargaining agreement. Moreover, Complainant
argues that the Agency deviated from several specific personnel policy
provisions in the collective bargaining agreement for promoting employees
on a noncompetitive basis. She believes that this showing was sufficient
to establish pretext, and the previous decision clearly erred in finding
no pretext and no discrimination.
ANALYSIS AND FINDINGS
As indicated above, the Commission may, in its discretion, grant
a request to reconsider a previous Commission decision where the
requesting party demonstrates that the appellate decision involved a
clearly erroneous interpretation of material fact or law. “A request
for reconsideration is not a second appeal to the Commission.” Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO-MD-110), at 9-17 (Nov. 9, 1999).
Here, Complainant essentially raises the same arguments that she had
previously made on appeal. Even if the Agency had misapplied the
provisions of the collective bargaining agreement, we cannot find
such an action to be discriminatory simply because it appears that
the Agency acted unwisely, or that the Agency’s actions were in
error or misjudgment. Therefore, we find that the previous decision
did not clearly err in not inferring from the purported deviation from
the collective bargaining agreement that the Agency was dissembling to
cover up a discriminatory purpose. After reconsidering the previous
decision and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. § 1614.405(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 0120110156 remains the Commission's decision. There is no
further right of administrative appeal on the decision of the Commission
on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
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
_10/18/11_________________
Date
2
0520110419
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110419