Merilyn W.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 30, 20180120171860 (E.E.O.C. Nov. 30, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Merilyn W.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120171860 Agency No. 200J05372016102897 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 24, 2017 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Pathways Administrative Support Intern, GS-4, at the Agency’s Jesse Brown Veteran Affairs Medical Center (“JBVMC”) in Chicago, Illinois. On March 31, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her based on race (Black) and disability when: 1. on March 8, 2016, Complainant was not selected (using Schedule A appointment) for the position of Management and Program Analyst, GS-0343-9, advertised under Vacancy Announcement No. JB-16-WB-1613571-BU; and 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. 0120171860 2 2. on March 8, 2016, Complainant was not selected for the position of Program Support Assistant, GS-0303-7, advertised under Vacancy Announcement No. JB- 16-WB-1633591-BU. After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. There is no indication in the record whether Complainant requested a hearing, or requested a final decision, or failed to respond to the Agency’s notice. On March 24, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant argues that she was eligible for both subject positions and she should have not had to compete for these positions as a Pathways Intern. In response, the Agency argues that Complainant received the final decision on March 24, 2017, and therefore, Complainant’s May 3, 2017 appeal was untimely. The Agency also reiterates its finding of no discrimination. ANALYSIS AND FINDINGS Timeliness of Appeal: As a preliminary matter, we find that Complainant’s appeal from the Agency’s final decision was timely. There is no evidence in the record to support the Agency’s contention that Complainant received the final decision on March 24, 2017. We note that Complainant attached to her appeal email correspondence from the Agency indicating that Complainant received a copy of the Agency’s final decision on April 20, 2017. Therefore, Complainant’s May 3, 2017 appeal before the Commission was timely submitted within 30-days of receipt of the final decision, pursuant to 29 C.F.R. § 1614.402(a). Disparate Treatment: 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, she must first establish a prima facie 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 0120171860 3 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. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant was diagnosed with sarcoidosis in 2013, a permanent progressive autoimmune disease. She said she experiences symptoms from her disease two to three times per month, including shortness of breath. She takes medication for the condition and had no medical job restrictions at the time of the events at issue.2 Agency management articulated legitimate, nondiscriminatory reasons for the selection decisions at issue. The Pathways Intern Program Manager (“M1”) stated that Pathway Interns can be hired under either a Not To Exceed (“NTE”) appointment or an Indefinite appointment. M1 explained that NTE appointments are temporary hires whose employment cannot exceed a specific date. M1 acknowledged that the appointments can be converted to full-time employee status through a term or permanent appointment. M1 further explained that Pathway Interns may be converted non-competitively once the Pathway Interns complete the program, and if the vacancy announcement indicates that the position is eligible for conversion. A copy of Complainant’s Pathways Internship Agreement, signed on October 29, 2013, indicates that Complainant was employed under a NTE appointment beginning on August 13, 2013. The record contains an email, dated December 9, 2015, from the human resources specialist to Complainant indicating that Complainant’s “internship does not qualify for conversion and no internship comes with a guarantee of conversion.” A copy of the Student Trainee job announcement under which Complainant was hired states that “[a]n intern may be converted non-competitively from an Internship Program to a term or permanent position in the competitive service, however, conversion is not mandatory or guaranteed.” Regarding claim 1, the human resources officer (“HRO”) (Caucasian) stated, that he had no role in the referral process or certifying the list of eligible candidates, and these duties were performed by the centralized Network HR staff located in Milwaukee, Wisconsin. The HRO further explained that the vacancy announcement was open to current, permanent JBVAMC employees and the announcement closed on February 10, 2016. 2 We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability. 0120171860 4 The HRO further stated that there were no special hiring authorities used to fill the position, including the Schedule A. The HRO explained that the Schedule A Letter Complainant used in subsequent applications was dated February 23, 2016, which was after the vacancy announcement had closed. The HRO stated that Complainant was not eligible for the position because she was not a current permanent JBVAMC employee and was employed, at the time of application, under a temporary appointment. The record includes a copy of the Management and Program Analyst vacancy announcement indicating that only “current, permanent employees of JBVAMC” may apply. The record also includes a March 8, 2016 notification indicating that Complainant was not selected for the Management and Program Analyst position because Complainant did “not meet the requirements of the ‘Who May Apply’ section, listed in the vacancy announcement.” A copy of the Management and Program Analyst referral list confirms that Complainant was not selected from the applicant pool. Regarding claim 2, the HRO stated that he had no role in the referral process or certifying the list of eligible candidates, and these duties were performed by the centralized Network HR staff located in Milwaukee, Wisconsin. The HRO further explained that the position vacancy was open to current, permanent employees of VISN 12. The HRO stated that Complainant was not eligible because she was employed under a temporary appointment at the time of application. The HRO further stated that Complainant indicated on the application questionnaire that she did not possess 52 weeks at the GS-6 level and Complainant also indicated on the application questionnaire that the time-in-grade requirements applied to her. The record also includes a copy of the Program Support Assistant Position which indicates that only “current permanent employees of VISN 12” may apply. The record also includes a March 8, 2016 notification indicating that Complainant was not selected for the Program Support Assistant position because she did not meet the “time-in-grade restriction.” A copy of the Program Support Assistant referral list confirms that Complainant was not selected from the applicant pool. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on her race or disability. We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 0120171860 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120171860 6 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 November 30, 2018 Date Copy with citationCopy as parenthetical citation