Kylee C.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 13, 20160120141401 (E.E.O.C. Apr. 13, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kylee C.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120141401 Agency No. 2003-0586-2013102548 DECISION The Commission accepts Complainant’s appeal from the February 20, 2014 final Agency decision (FAD) 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’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Social Worker at the Agency’s VA Medical Center in Jackson, Mississippi. Social Workers at the facility are assigned to one of three teams: Medical/Surgical, which contains Primary Care; Mental Health; and Homeless. From approximately December 2009 through December 2012, Complainant was a GS-11 Social Worker assigned to Primary Care. Social Workers on the other teams were GS-12s. Complainant subsequently was selected to be a GS-12 Social Worker on the Mental Health Team. On or about October 15. 2012, the Agency issued an announcement for 10 Social Worker positions under Vacancy Announcement Number VA-13-GHS-761230-MHC. The announcement indicated that two of the vacancies were in Primary Care. Complainant applied for the position on October 15, 2012, and noted on her application that she only wanted to be 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. 0120141401 2 considered for the vacancies in Primary Care. On or about January 30, 2013, Complainant received notification that she had not been selected for the position. Complainant claims that her application for the Social Worker positions in the Primary Care Unit also served as her request for transfer back to the Primary Care Unit. Complainant discussed her wish to return to the Primary Care Unit with her supervisor (S1). Complainant’s request for reassignment was subsequently denied. On May 14, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of race (African-American) when: 1. When on March 22, 2013, she became aware a White applicant had been selected for the Primary Care Social Worker position, Announcement Number VA-13- GHS-761230-MHC; and 2. As of May 14, 2013, her request to be transferred back to Primary Care was denied. At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant requested a FAD. In accordance with Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of discrimination and determined that management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, regarding claim (1) the Agency’s Leadership Committee met to review the candidates’ applications and resumes and to discuss the applicants whose names appeared on the Certificate of Eligibles. The Committee did not conduct interviews for the first two selections for Primary Care.2 Complainant’s acting supervisor (AS) stated that she provided input for the Leadership Committee on Complainant's performance based on her observations and interactions with Complainant during the 12 months Complainant was under her supervision. AS provided three reasons for Complainant's non-selection. First, Complainant had just accepted a promotion to a GS-12 position in the Trauma Recovery Program. According to AS, this was a high-profile position, and if Complainant vacated the position, it would have to be filled quickly. Next, another candidate had experience in Primary Care, and did not have conduct and performance issues, but was unable to perform the duties in her current position due to medical reasons. 2 The Agency subsequently conducted interviews and made a third selection (Selectee 3) for the position. During the investigation, Complainant specifically stated that she was only claiming that the selection of Selectee 2 was discriminatory, not the selections of Selectee 1 and Selectee 3. ROI, at 160. 0120141401 3 Thus, the Primary Care Social Worker position was a good fit for her. Third, Complainant's current position was a better match for her since the position had greater oversight, structure and accountability. Two additional members of the Leadership Committee stated that management officials expressed concerns about Complainant's performance and reliability. S1 stated that management tried to assist Complainant by moving her to different positions on a number of occasions. Leadership Committee members confirmed that Selectee 1 and Selectee 2 were better suited for the positions based on their experience, positive input from former managers, outstanding work ethic, reliability, and productivity. The Chief of Social Work Services (Chief) was also the selecting official for this position and acknowledged that Complainant was qualified for the position. Although Complainant performed the duties of a GS-11 Social Worker for Primary Care, the Chief stated that there were additional duties at the GS-12 level such as travel and training that were not required at the GS-11 level. Further, the Chief stated that Complainant had been previously counseled for accountability issues, a delay in responding to a page, and other conduct issues. The Chief mentioned that the Office of the Inspector General found that Complainant was sitting at the clerk's desk for long periods of time. As a result, the Chief selected Selectee 1 and Selectee 2. Finally, with respect to claim (2), S1 stated that he brought Complainant’s request for reassignment to the attention of the Leadership Committee. S1 affirmed that Complainant’s request was met with the same concerns about her lack of accountability and performance issues. Further, the Chief confirmed that Complainant’s request was denied because the GS-12 Social Worker position was a bargaining unit position which was required to be announced unless there were extenuating circumstances. There were no such extenuating circumstances in Complainant’s case. AS added that she too did not support Complainant’s request to return to Primary Care because of her prior conduct issues. Moreover, AS noted that Complainant’s prior position has been filled at the time of Complainant’s request; therefore, there was no position to which she could have returned. The Agency determined that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been discriminated against as alleged. The instant appeal followed. Complainant filed an untimely brief in support of her appeal.3 3 EEOC Regulation 29 C.F.R. § 1614.403(d) provides that any statement or brief on behalf of a complainant in support of an appeal must be submitted to the Commission within 30 days of filing the notice of appeal. Complainant did not submit a brief in support of her appeal until April 8, 2014, which is beyond the applicable limitations period. As Complainant did not present adequate justification for the late submission, the Commission finds that her untimely brief will not be considered in this appeal. 0120141401 4 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 Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming arguendo that Complainant established a prima facie case of discrimination, record evidence shows that Agency officials articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), AS confirmed that she did not recommend Complainant for the Primary Care Social Worker position for several reasons. First, S1 explained that Complainant had just accepted a promotion to a high-profile position and that position would have to be filled again very quickly if Complainant vacated it. ROI, at 131. Further, AS believed that Complainant’s current position was a better fit for Complainant because it offered more structure and accountability. Id. at 132. AS noted that the Primary Care Unit positions were very autonomous while Complainant reported to a Team Leader and Operations Manager in the Trauma Recovery Program. Id. Based on AS’s direct supervision and information that had been shared in the Social Work Leadership Committee meetings, she felt that Complainant needed more structure and accountability. Id. Other Leadership Committee members confirmed that there were documented concerns about Complainant’s work ethic and reliability, specifically noting that there were a number of occasions when Complainant failed to answer her pager and was otherwise unaccounted for. Id. at 148, 155. As a result, the Leadership Committee did not recommend Complainant and she was not selected for the position. Finally, with respect to claim (2), the Chief stated that Complainant’s request for reassignment to the Primary Care Unit was denied because the position was a bargaining unit position, and would need to be announced unless there were extenuating circumstances. ROI, at 126. Complainant failed to show that there were extenuating circumstances, but was encouraged to apply for the positions if they were announced. Id. AS noted that Complainant’s prior position had been filled, and there was no position for her to return to. Id. at 134. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. 0120141401 5 As Complainant chose to not request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds that the record lacks evidence that the Agency’s actions were based on discriminatory animus. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that discriminatory animus was a factor in its actions. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination as alleged. 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 Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, 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 0120141401 6 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 (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 13, 2016 Date Copy with citationCopy as parenthetical citation