0120110387
03-17-2011
Sharon L. Easley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sharon L. Easley,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110387
Agency No. 200J-0578-2009100200
DECISION
Complainant appeals to the Commission from the Agency's decision dated
June 23, 2010, finding no discrimination. 29 C.F.R. � 1614.405(a).
For the following reasons, we AFFIRM the Agency's decision.
BACKGROUND
In her complaint, filed on January 27, 2009, which was subsequently
amended, Complainant, an applicant for employment within the Agency's
Environmental Management Service, alleged discrimination based on sex
(female) and in reprisal for prior EEO activity when:
(1) On October 10, 2008, she was not selected for the position of
Housekeeping Aid, WG-3566-1, under Vacancy Announcement No. 09-19B;
(2) On April 6, 2009, she was not selected for the position of
Housekeeping Aid, WG-3566-3, under Vacancy Announcement No. 09-24H; and,
(3) On April 6, 2008, she was not selected for the position of
Housekeeping Aid Leader, WL-3566-2, under Vacancy Announcement
No. 09-183H.
After completion of the investigation of the complaint, Complainant did
not request a hearing. The Agency thus issued its decision concluding
that it asserted legitimate, nondiscriminatory reasons for its action,
which Complainant failed to rebut.
ANALYSIS AND FINDINGS
After a review of the record, we, assuming arguendo that Complainant had
established a prima facie case of discrimination, find that the Agency
has articulated legitimate, nondiscriminatory reasons for the alleged
nonselections.
With regard to claim (1), Complainant indicated that she did not apply
for the position at issue. Report of Investigation (ROI), Exhibit
(Ex.) B-1, p. 11.
With regard to claim (2), the Agency stated that a panel, comprised of
three Agency officials, rated the qualified applicants for the position.
Complainant did not receive the cutoff rating based on the applications,
and, thus, was not referred to a recommending official. ROI, Ex. B-4.
The recommending official stated that she reviewed the certification
list for the position and Complainant was not selected because she was
not on the certification list for the position. ROI, Ex. B-3.
With regard to claim (3), a selecting official for the position at issue
indicated that he had two certificates for this position. ROI, Ex. B-4.
Specifically, the selecting official stated that he received the first
certificate, which included Complainant's name, but he thought it lacked
some Environmental Management Service qualified employees. ROI, Ex. B-2.
The selecting official indicated that he, thus, contacted the panel and
requested the second certificate. Id. The selecting official stated
that Complainant's name was not on the second certificate and, thus,
she was not selected. Id.
Upon review, we find that Complainant failed to show the Agency's
foregoing explanations were pretext. Furthermore, we find that
Complainant failed to show that her qualifications for the positions were
plainly superior to the selectees' qualifications or that the Agency's
actions were motivated by discrimination. See Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995).
CONCLUSION
Accordingly, the Agency's decision finding no discrimination 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
3/17/11
__________________
Date
2
0120110387
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013