Natalie F.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 27, 2017

0120150749 (E.E.O.C. Apr. 27, 2017)

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

Natalie F.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120150749

Hearing No. 410-2014-00138X

Agency No. 200I-0316-2013102555

DECISION

On December 17, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s December 11, 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. For the
following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Military Service Coordinator, GS-11, at the Martin Army
Community Hospital in Fort Benning, Georgia. On April 21, 2013, Complainant filed an EEO
complaint in which she alleged that the Veterans Service Center Manager, while acting in his
capacity as a Selecting Official (SO), retaliated against her for previous EEO activity arising
from a notice of proposed termination that she had received approximately two years earlier.
Investigative Report (IR) 134. Specifically, complainant alleged that in retaliation for having
initiated the EEO process, the SO declined to select her for three positions: a GS-12
Supervisory Veteran Service Representative/Assistant Coach position on February 21, 2013; a
GS-13 Supervisory Veteran Service Representative/Coach position on April 17, 2013; and a
GS-11 Rating Veteran Service Representative position on April 18, 2013.

1 This 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.
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Complainant was one of ten candidates to apply for the GS-12 Assistant Coach position. IR
228. She and the two selectees (S1 and S2) were interviewed by the SO and the Assistant
Veterans Service Manager in his capacity as a reviewing official (RO1). IR 313-14. The SO
and RO1 averred that Complainant performed very poorly during the interview and on a
practice exercise that all the applicants were required to undergo. IR 136-37, 154-55. The
scoring sheets for the candidates indicated that Complainant’s average interview score was 10
points out of 30, while the average interview scores of the selectees was between 24 and 26.
IR 281-288, 292-99, 301-09. In her most recent performance appraisal prior to her
application, Complainant was rated as fully successful on all six rating elements. IR 466, 470.
S1 was given ratings of exceptional on all six of his performance elements. IR 260-62. In
terms of the overall scores, Complaint received a score of 19 while S1 and S2 received scores
of 62 and 51.5, respectively. IR 137, 155, 276.

Regarding the GS-13 Coach position that was announced two months after the Assistant Coach
position, Complaint again submitted an application. IR 326-27. She was interviewed by the
SO and another reviewing official (RO2), but again, she was not selected. IR 410. According
to the SO, Complainant was not the best qualified candidate for the position. He noted that
Complainant’s interview score of 9.5 out of 30 points ranked among the bottom three
applicants. IR 139. The Selectee for this position (S3) had received an annual performance
appraisal of fully successful as did Complainant but, unlike Complainant, he was given ratings
of exceptional on four of the six appraisal elements. IR 354, 357-58, 368-70, 470. The
interview score sheets prepared by the SO and RO2 indicate that Complainant received an
interview composite score of 10.5 out of 30 while S3 received an interview composite score of
27.5 out of 30. IR 387-405.

As to the GS-11 Rating Representative Position, the position had been advertised and
applications solicited, but in early 2013 there was a government-wide hiring freeze to which all
agencies were subject. The Southern Area Director informed the Human Resource Manager
that external hiring would remain on hold. According to a memorandum to the EEO
investigator from the EEO Program Manager, who was also the Agency’s Human Resource
Manager, the vacancy was ultimately cancelled due to the hiring freeze. IR 189, 448, 460,
462, 464.

At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing. The AJ assigned to the case granted the Agency’s
July 7, 2014, motion for summary judgment over Complainant’s objections, and issued a
decision on October 23, 2014, without holding a hearing. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

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ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a summary judgment decision when she
finds that there are no genuine issues of material fact that would warrant a hearing. See 29
C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable
fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317,
322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is
“material” if it has the potential to affect the outcome of the case. The evidence of the non-
moving party must be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to warrant a hearing on her disparate treatment claim with respect
to the nonselections at issue in her complaint, Complainant would have to present enough
evidence to raise a genuine issue of fact as to whether the SO was motivated by unlawful
considerations of her EEO activity when he decided not to select her. See 29 C.F.R.
§ 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).

In general, a 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
initially establish a prima facie case by demonstrating that she was subjected to an adverse
employment action under circumstances that would support an inference of discriminatory
motive. 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 SO, RO1, RO2, and the Human
Resource Manager articulated a legitimate and nondiscriminatory reason for each nonselection.
See United Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13,
1997).

Once the Agency has provided a legitimate, nondiscriminatory reason for its actions, the
Complainant must raise a genuine issue of material fact as to whether the Agency's
explanations for those nonselections were pretextual, i.e., not the real reasons but rather a
cover for reprisal. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993). Pretext
can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the
Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal
No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No.
0520080211 (May 30, 2008).

In nonselection cases, Complainant could demonstrate pretext by showing that her
qualifications for the position were plainly superior to those of the selectees. Hung P. v. Dept.
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of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators of
pretext include discriminatory statements or past personal treatment attributable to those
responsible for the personnel action that led to the filing of the complaint, comparative or
statistical data revealing differences in treatment across various protected-group 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. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov.12, 2015).

In attempting to show pretext in a situation involving nonselections, Complainant must keep in
mind that when hiring or promoting, agencies have broad discretion to choose among qualified
candidates as long as the selection is not based on unlawful considerations. Complainant v.
Dept. of Homeland Security, EEOC Appeal No. 0120141478 (Jul. 31, 2015). Agencies may
select candidates with fewer years of experience if they believe that such candidates are best
qualified to meet the needs of the organization. See Complainant v. Dept. of Justice, EEOC
Appeal No. 0120131151 (Feb. 25, 2015). They may even preselect a candidate as long as the
preselection is not premised upon a prohibited basis. See Complainant v. Dept. of Homeland
Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015).

When asked by the investigator why she believed that she was better qualified than the
selectees for the Assistant Coach and Coach positions, Complainant replied that she had many
more years at the Agency than any of the selectees and that she had established a reputation of
likeability, trustworthiness, and entitlement to respect. IR 119, 120. When asked whether she
was familiar with the hiring freeze, she responded that she was not but conceded that it was
probably true that there was such a freeze. IR 124. Finally, when asked why she believed that
she was not selected for any of the three positions because of her prior EEO activity, she
averred that the goal of management was not to promote her because she had been vocal about
her previous EEO complaint. IR 124-25. Beyond these assertions, Complainant has not
presented any affidavits, declarations, sworn statements from witnesses other than herself, or
documents that conflict with the assessment of her qualifications for the two positions by the
SO, RO1 and RO2, or which contradict the Human Resource Manager’s statement that a hiring
freeze was in effect at the time the vacancy for the Rating Representative position was
cancelled. She has likewise not presented any evidence that calls into question the veracity of
the SO, RO1, RO2, or the Human Resource Manager. We therefore find, as did the AJ, that
no genuine issue of material fact exists as to the existence of a retaliatory motivation on the
part of any management official involved in the three nonselections that Complainant describes
in her complaint.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s decision finding Complainant was not
discriminated against as alleged.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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.

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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

April 27, 2017
Date