0120123321
07-17-2014
Complainant v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123321
Hearing No. 532-2011-00185X
Agency No. 200H-0642-2011100356
DECISION
On August 21, 2012, Complainant filed an appeal from the Agency's July 30, 2012, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge properly found that Complainant had not established that she had been discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse/Quality Management Specialist in Clinical Support Services at the Agency's VA Medical Center in Philadelphia, Pennsylvania. Complainant has been employed at the Agency since 1978, and had previously held the position of Infection Control Nurse from 1981 through 1993, when she was transferred to a different position. Complainant has filed a number of previous EEO complaints and appeals regarding her transfer out of the Infection Control Nurse position and her unsuccessful attempts to obtain that position again. See EEOC Appeal No. 01973596 (June 22, 2000), req. to recon. denied, EEOC Request No. 05A01039 (Jan. 25, 2001) (Complainant was not discriminated against when she was issued a reprimand and was permanently reassigned from her position as Infection Control Nurse to Nurse in the Quality Management Section); EEOC Appeal No. 01961482 (Feb. 5, 1998), req. to recon. denied, EEOC Request No. 05980465 (Mar. 24, 2000) (Complainant was not discriminated against on the bases of race, color, age and reprisal when her temporary reassignment out of the Infection Control Nurse position was made permanent); EEOC Appeal No. 01A45596 (April 26, 2006), req. to recon. denied, EEOC Request No. 05A60781 (July 13, 2006) (Complainant was not discriminated against on the basis of reprisal when she was not selected for the Infectious Disease Control Nurse position).
On December 6, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when, by letter dated October 19, 2010, she was notified of her non-selection for the position of Registered Nurse, Infection Control, Vacancy Announcement No. 305-10.
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.
The AJ held a hearing on February 17, 2012, at which six witnesses testified. She issued a decision on July 19, 2012. In her decision, the AJ found the facts to be as follows: On August 27, 2010, the Agency posted Vacancy No. 305-10 for the position of Registered Nurse, Infection Control. Complainant applied and was found qualified for the position. On September 10, 2010, Complainant submitted her application for the position with a cover memorandum that included a paragraph in which she stated that she hoped that her application would not be "tainted by any negative information that may have been communicated concerning" her prior EEO activity. She noted that she had held the position in question from 1981 through 1993, and that she had pursued EEO complaints concerning her "discriminatory reassignment and subsequent non-selections for the filling of vacant Infection Control Nurse positions." The AJ found that Complainant had previously applied for the Infection Control Nurse position, that the vacancy announcement had been cancelled, and that Complainant had filed an EEO complaint regarding the prior vacancy announcement on September 27, 2010.1 Complainant was one of five candidates found to be qualified for the position and interviewed by a three-person interview panel. After the interviews were conducted, the selectee had the highest score, and Complainant had the lowest score. The AJ found that none of the interview panelists had any knowledge of Complainant's previous EEO activity, aside from what she had written in the paragraph in her cover memorandum.
The AJ found that Complainant established a prima facie case of discrimination based on retaliation. Complainant established that she engaged in protected EEO activity when she initiated EEO counseling regarding the cancelled vacancy announcement for the Infection Control Nurse position which was advertised and cancelled within several months of the vacancy announcement at issue here; that the interview panel and selecting official were aware she had previously engaged in protected EEO activity, because she included that information in her cover memorandum, and that she was subjected to an adverse action when she was not selected for the position at issue. The AJ then found that the Agency had articulated a legitimate, nondiscriminatory reason for its actions, in that the selectee had the highest score after the interview panel conducted the interviews, while Complainant scored the lowest, and the selectee had superior qualifications and more recent relevant experience. The AJ concluded that Complainant had not demonstrated those reasons to be pretext for discrimination as she had not shown that she was the best-qualified candidate for the position, and she had not established that any of the interview panel members or the selecting official had considered her prior EEO activity when making their selection for the position.
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. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In her brief in support of her appeal, Complainant argued that the Philadelphia VAMC is a "closed community" and that through the "rumor mill" "people were aware of Complainant's EEO complaints. She argued that the Agency would "never" give her a position in Infection Control, despite the demand for someone in the position, and that she was the best candidate for the position and should have been selected.
The Agency submitted a brief in opposition to Complainant's appeal in which it argued that Complainant's statements about the "closed community" at the facility, and the "rumor mill" are not material to the question of whether the interview panel members were aware of Complainant's EEO complaints, as she disclosed her previous EEO activity in her cover memorandum to her application. It argued that Complainant did not establish that she is the superior candidate to the selectee, as her experience is at least 15 years old, and that the AJ reached the proper conclusions of law in finding that Complainant had not established that she had been discriminated against.
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. 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. 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 for 29 C.F.R. Part 1614 (MD-110), Chapter 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
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). Complainant 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 discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. 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).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp., supra). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
We find that the AJ properly found that Complainant had established a prima facie case of reprisal discrimination. Complainant had engaged in EEO activity, the interview panel members were aware of that activity through Complainant's inclusion of such in her cover memorandum to her application, and she was not selected for the position in question. The activity and her nonselection occurred close enough in time to infer a connection.
The AJ also properly found that the Agency offered legitimate, nondiscriminatory reasons for not selecting Complainant for the position. The interview panel members interviewed each of the candidates using the same performance-based questions, and Complainant scored lowest out of the five candidates, while the selectee scored the highest. The selecting official also stated that the selectee had experience in improving the Infection Control program at another Agency facility, while Complainant's experience in this area was at least 15 years old.
We conclude that Complainant failed to show that the Agency's reasons for its actions were pretext for discrimination. Although Complainant argued that her past EEO history must have played a role in her nonselection, the record shows that the selecting official began working at the Philadelphia VAMC in 2008, and had no knowledge of Complainant's previous complaints beyond what Complainant had referenced in her application cover memorandum. Beyond Complainant's conjecture that the interview panel members or the selecting official knew of the substance of her previous complaints or graded her interview answers with poor scores because of that EEO activity, there is nothing in the record to support Complainant's claim of reprisal discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision implementing the AJ's finding of no discrimination.
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
July 17, 2014
Date
1 This EEO complaint is the subject of EEOC Appeal No. 0120130042.
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0120123321
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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