0120112059
02-15-2012
Cynthia J. Goswick, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cynthia J. Goswick,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112059
Hearing No. 430-2008-00399X
Agency No. 2004-0590-2008100458
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s February 1, 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. For the following
reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Secretary in the Office of the Director in the Agency’s
Medical Center in Hampton, Virginia. In October 2006, Complainant’s
second-level supervisor (S2) entered her position as Facility Director.
In January 2007, S2’s secretary was reassigned, and Complainant and
another staff member acted in the position temporarily. Soon thereafter,
S2 requested that Human Resources upgrade the secretary positions from
GS-7 to GS-7/8/9. At the time, S2’s secretary was at the GS-8 grade,
while Complainant and the three other administrative support staff members
were at the GS-7 grade level. S2 believed that the position was not
at the appropriate grade level and sought employees with more advanced
administrative skills. Complainant and the other incumbent secretaries
were advised that they could apply and compete for the upgrade positions,
but anyone who was not selected would be laterally reassigned.
Subsequently, on or about May 3, 2007, Vacancy Announcement No. 127-07
was posted for a Secretary, GS-7/8 position. The selectee for this
position would serve as S2’s secretary. Complainant and seven other
candidates were interviewed. A three-person selection panel evaluated
each candidate based on interview performance and application materials.
The panel rated each candidate and unanimously recommended the selectee
based on her total score of 69.2. Complainant received a score of 48.6
and was not recommended. On July 17, 2007, S2, the selecting official,
adopted the panel’s recommendation. The selectee entered duty on August
31, 2007, as S2’s secretary. Complainant remained in her position as
administrative assistant to her first-level supervisor (S1).
On August 24, 2007, the Agency advertised three GS-7/8 positions under
Vacancy Announcement 230-07. The selectees for these positions would
replace the incumbent secretaries. A selection panel interviewed
and recommended three applicants for the positions, and S2 adopted
their recommendations. Complainant failed to apply for any of the open
secretary positions and was therefore not selected. As a result, on or
about October 15, 2007, Complainant was replaced as S1’s secretary.
Complainant received a lateral inter-facility reassignment to a Purchasing
Agent position in the Prosthetics Services department. She maintained
her GS-7 grade and salary.
On December 5, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of race (Caucasian) when:
1. On October 16, 20071, she became aware that she was not selected for
the position of Secretary (O/A), GS-0318-7/8, under Vacancy Announcement
No. 127-07; and
2. On October 16, 2007, she was reassigned to the position of Purchasing
Agent in the Hampton VAMC Prosthetics Service.
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, and the AJ held a hearing on January 13,
2010, and issued a decision on January 19, 2011.
In the decision, the AJ initially determined that Complainant failed to
establish a prima facie case of race discrimination as to both claims.
Nonetheless, assuming arguendo that Complainant had established a prima
facie case of discrimination, the AJ found that the Agency had articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
Complainant was not selected for Vacancy Announcement No. 127-07 because
she did not receive the highest total combined score.
Next, in attempting to establish pretext, Complainant argued that the
selection process was tainted by the appearance of S2 pre-selecting
the selectee. Complainant alleged that S2 encouraged the selectee
to apply and made special provisions for her to apply. In addition,
Complainant alleged that S2 and the selectee were personally acquainted
through their membership in a minority mentoring group and that they
communicated frequently.
The AJ determined that there was no evidence of pre-selection.
S2 admitted that she informed the selectee of the position and encouraged
her to apply; however, S2 encouraged two other candidates to apply for
the position as well. Further, the AJ found that the selection panel
independently assessed and interviewed each of the applicants on the
Promotion Certificate. The AJ concluded that there was no evidence
that S2 or any other management official exercised any control over who
applied, who was certified, who was interviewed, or who was eventually
recommended for selection. In addition, the Agency's use of a standard,
unbiased application and selection process to fill the vacancy further
rebutted Complainant's arguments of pre-selection based on race or any
other basis.
Additionally, Complainant asserted that her secretarial experience
and time served as S2’s interim secretary showed that she was more
qualified than the selectee. The AJ determined that despite Complainant's
subjective opinion that she was the most qualified candidate, her
credentials did not reach the level of being plainly superior to those
of the selectee. Even if Complainant were able to establish that her
qualifications were greater than the selectee's, the panel, using
standardized and unbiased criteria, unanimously rated the selectee
as the top candidate based on both her application materials and her
interview performance. S2, as the selecting official, adopted the panel's
recommendations and extended an offer of employment to the selectee.
Regarding claim (2), the Agency affirmed that Complainant was reassigned
because she was not selected for one of the announced secretary positions.
More specifically, Complainant was not selected because she chose not to
apply for one of the positions. As a result, Complainant was reassigned
to a Purchasing Agent position because she was replaced by one of the
newly hired secretaries.
Complainant claimed, but did not identify the source, that she was
advised not to apply for one of the positions. The AJ determined that
Complainant had presented no credible evidence to support her contention
that she was discouraged from applying. The AJ noted that Complainant
actually testified that S1 and S2 encouraged her to apply for one of
the positions as it could result in a promotion or grade increase.
The AJ found that Complainant was unable to rebut the Agency’s
legitimate, nondiscriminatory reasons for its actions. As a result, the
AJ held that Complainant had not been discriminated against as alleged.
The Agency subsequently issued a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency’s claimed legitimate,
nondiscriminatory reasons for selecting the selectee in claim (1) were
not sufficient. Specifically, Complainant argues that the fact that
she did not score as highly as the selectee does not explain why she
was not selected. Complainant states that a review of the applications
shows beyond a doubt that she was much more qualified for the position.
Further, Complainant contends that the record is clear that S2 influenced
the selection panel’s recommendation of the selectee.
As to claim (2), Complainant argues that she did not apply for her own
position because it was clear that S2 did not want her in the position.
Complainant contends that her reassignment was not voluntary and that she
was forced out of her position without any evidence of poor performance.
Accordingly, Complainant requests that the Commission reverse the
final order.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if” supported by substantial evidence in the
record. Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474. 477
(1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swim, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing
was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or me testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr, Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248. 256 (1981).
Upon review of the record, the Commission finds that the AJ's finding of
no discrimination is supported by substantial evidence. The Commission
concurs with the AJ's finding that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (1),
S2 testified that she upgraded the secretary position because she did
not believe the grade level was appropriate for the executive secretary
and she wanted to ensure that the appropriate skills and necessary
responsibilities were in the position description. Hr’g Tr., at 375.
Complainant applied for the position, was found to be qualified, but
ultimately was not selected because she did not score as highly as the
selectee based on her application and interview.
One selection panelist testified that she rated Complainant’s
interview lower than the selectee’s because her responses were very
limited, while the selectee did an excellent job in responding to the
situational interview questions. Hr’g Tr., at 109-10. She added that
she recommended the selectee for selection based on evidence of her
broad organizational knowledge, her ability to synthesize information
and present it clearly, and her ability to lead and effectively
manage any position that she had held up to that point. Id. at 130.
Another selection panelist testified that she had never interviewed
anyone who performed as well as the selectee during her interview, and
she impressed the panel with her broad work experience and background.
Hr’g Tr., at 60. Based on the combined interview and application
scores, the selectee was recommended for selection, and S2 selected the
selectee based on the panel’s recommendation.
Regarding claim (2), S2 decided to upgrade and open the secretary
positions because she was unsatisfied with the performance of
the current secretaries and wanted to ensure that she had the best
qualified individuals in the positions. The positions were announced in
Vacancy Announcement No. 230-07. Despite being aware that the selected
candidates would replace the incumbent secretaries, Complainant failed
to apply for any of the open positions and was therefore not selected.
After the selectees entered duty, Complainant needed to be reassigned
or she would be without a job. As a result, Complainant was reassigned
to a Purchasing Agent position in Prosthethics.
Because the Agency has proffered legitimate, nondiscriminatory reasons for
the alleged discriminatory incidents, Complainant now bears the burden of
establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this by showing that the Agency was
motivated by a discriminatory reason. Id. (citing St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502 (1993)). Complainant can also establish
pretext by showing that her qualifications are “plainly superior”
to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981).
As to claim (1), Complainant argues that S2 influenced the selection
panel’s selection and had essentially pre-selected the selectee.
The Commission notes that, even if preselection occurred, it would not
be unlawful unless Complainant can show that the preselection was driven
by discriminatory animus. Nickens v. Nat’l Aeronautics Space Admin.,
EEOC Request No. 05950329 (Feb. 23, 1996). Preselection, per se, does
not establish discrimination when it is based on the qualifications
of the selected individual and not some prohibited basis. McAllister
v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994).
The record reveals, however, that the selection panel independently
evaluated and rated the candidates. Ultimately, S2 chose the selectee
based on the selection panel’s recommendation because they all believed
the selectee was the better candidate and was in the best interest of
the Agency. Aside from Complainant's bare assertions, the record is
devoid of any persuasive evidence that discrimination was a factor in
the Agency’s selection.
Regarding claim (2), Complainant contends that her reassignment was not
voluntary and she did not apply because it was clear that S2 did not
want her to apply. Both S1 and S2 testified that they did nothing to
discourage Complainant from applying. Further, while Complainant’s
reassignment may not have been voluntary, it was necessary after she
failed to apply for one of the secretary positions.
Accordingly, the Commission finds that the AJ's determination that
Complainant failed to establish pretext is supported by substantial
evidence in the record. The record and facts gleaned at the hearing
fail to prove any evidence purporting to show the Agency's actions were
pretext for discriminatory animus. Accordingly, the Commission discerns
no basis to disturb the AJ's decision.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final Agency order because
the Administrative Judge’s ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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 (Nov. 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
February 15, 2012
Date
1 The record indicates that Complainant was actually informed of her
non-selection on July 17, 2007.
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0120112059
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112059