EEOC Appeal 2020000547

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilda M.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020000547
Hearing No. 430-2017-00324X
Agency No. 200406372016103187
DECISION
On September 11, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
August 12, 2019, final order concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Advanced Medical
Support Assistant at the Agency’s Charles George VA Medical Center in Asheville, North
Carolina.
On July 19, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of disability (degenerative disk disease, spondylolysis, spinal stenosis,
osteo arthritis), age (over 40), and reprisal for prior protected EEO activity when:
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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1. 	On April 16, 2016, Complainant learned that she was not referred for an interview
for the position of Advanced Medical Support Assistant, GS-0679-06, Job
Announcement Number: 637-16-142-DH1645670-BU; and
2.
3. 	On April 18, 2016, Complainant learned that she was not selected for the position
of Lead Medical Support Assistant, GS-0679-07, under Announcement Number
637-16-142-DH-1642233-BU.
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). Complainant timely requested a hearing and
the AJ held a hearing on July 24, 2019. Complainant participated and was represented by an
attorney.
The record developed during the investigation and hearing reveals the following summary of the
pertinent facts.
Claim 1 – Non-selection for Advanced Medical Support Assistant (MSA) position
Complainant 	was 	known 	as 	an 	individual 	with 	a 	disability 	(degenerative 	disk 	disease,
spondylolysis, spinal stenosis, osteo arthritis). Management was also aware that Complainant was
over age 40. In addition, Complainant had been a witness in her sister’s EEO complaint, also
against the Agency.
On or around April 2016, the Agency began recruitment for an Advanced Medical Support
Assistant (MSA) position, GS-0679-6, at the Asheville VA Medical Center. The position was
advertised under Job Announcement Number 637-16-147-DH-1645670-BU. Complainant met the
necessary qualifications for the position and was referred to the resume review panel for
consideration. The resume panel reviewed the list of eligible applicants and scored the applicants
according to the following criteria: (1) experience, education, and MSA experience, and 2) overall
quality of the resume and application packet. There was no evidence that the resume review panel
knew of Complainant’s participation as a witness in her sister’s EEO complaint.
The resume review panel identified individuals who had prior experience in “decedent affairs,”
enroll, and eligibility, and identified any grammatical error within each applicant’s resume.
Complainant’s resume did not contain any experience relevant to “decedent affairs” and contained
grammatical errors. 	Complainant was scored 39 points and did not score enough points to be
referred for an interview. Complainant was not selected. The Agency selected a person who was
not in Complainant’s protected groups (no disability and no prior EEO activity). The person
selected had a higher score from the resume review panel.

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Claim 2 – Non-selection for Lead Medical Support Assistant Position
The Agency advertised for a Lead Medical Support Assistant (Lead MSA) position. Complainant
applied. The resume review panel reviewed the list of applicants and scored the applicants using
the following criteria: (1) experience, with and emphasis on customer service; and 2) overall
quality of the resume and application packet. Of those who applied for the Lead MSA position,
one candidate scored higher than the other candidates, given her prior experience. After the resume
panel scored the eligible applicants, the top scoring candidate was selected. There was no interview
round, because “there was a clear break in the score of the selectee and the rest of the eligible
applicants.” Complainant scored 28 points lower than the selectee in the resume review round.
Following the hearing, the AJ issued a decision on July 30, 2019. 	The AJ found that none of
Complainant’s claims of discrimination were substantiated in the record or during the hearing.
The AJ also found that, “Complainant’s testimony was not credible due to inconsistencies and
initially naming three individuals who were not part of the selection plan for the Lead MSA
position.” In addition, the AJ found that Complainant had not shown that her qualifications were
plainly superior to the selectees. The AJ found that Complainant failed to show by a preponderance
of the evidence that she was discriminated against based on age, disability of reprisal.
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.
This appeal followed. On appeal, Complainant contends that the AJ erred in failing to find
discrimination and erred when the AJ ruled against Complainant finding that her testimony was
not credible compared to the officials involved in the selection.
ANALYSIS AND FINDINGS
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. National Labor Relations Board, 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. Swint, 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.
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he
must first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

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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 Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine,
450 U.S. at 256.
This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether complainant has shown by a preponderance of the evidence that the
agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request
No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request
No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
Here, the evidence of record fully supports the AJ’s determination that the responsible
management officials articulated legitimate reasons for not referring Complainant for an interview
for the position of Advanced Medical Support Assistant and for selecting another candidate for the
position of Lead Medical Support Assistant. 	Substantial evidence also supports the AJ’s
conclusion that Complainant did not prove that the stated reasons were a pretext for unlawful
discrimination.
Moreover, 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 the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). In this case, we
find that the record supports the AJ’s credibility determinations or final conclusion that no
discrimination or unlawful retaliation was established.
CONCLUSION
Accordingly, we AFFIRM the Agency’s Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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.

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Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within which to submit a brief or
statement in opposition. 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the 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 (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.

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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
November 4, 2020
Date