Mindy O.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 29, 2020

2020003714-2020003715 (E.E.O.C. Sep. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mindy O.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Request Nos. 2020003714 and 2020003715 Appeal Nos. 2019004761 and 2019004762 Hearing Nos. 530-2014-00076X and 530-2016-00273X Agency Nos. 200H-0642-2013100942 and 200H-0642-2015105432 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal Nos. 2019004761 and 2019004762 (March 10, 2020). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). As a threshold matter, Appeal Nos. 2019004761 and 2019004762 were consolidated below. According, we will also consolidate the instant Request Nos. 2020003714 and 2020003715, pursuant to 29 C.F.R. § 1614.606. 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. 2 2020003714 and 2020003715 During the relevant period, Complainant was a retired Agency employee of 41 years who previously worked as a Quality Management Specialist, GS-3, Step-12, at the Agency’s Veterans Affairs Medical Center in Philadelphia, Pennsylvania. On October 31, 2012, Complainant filed a formal EEO complaint alleging discrimination in reprisal for prior EEO activity (numerous claims related to non-selection) when she was not selected for the position of Registered Nurse-Infection Control, under Vacancy Announcement No. YB-12-JHO-729540 (Vacancy 1). On August 4, 2015, Complainant filed another formal EEO complaint alleging discrimination in reprisal for prior EEO activity when she was not selected for the position of Registered Nurse, Infection Prevention, under vacancy announcement number PHL-15-JHO-1444472 (Vacancy 2). After an investigation, the Agency provided Complainant with a copy of the reports 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 on both complaints. After review, the AJ consolidated the two complaints for continued processing. A hearing was held on December 13, 2018, with three individuals, including Complainant, giving testimony. The hearing reconvened on March 19, 2019, with one additional individual testifying. During the hearing, the selecting officials for Vacancy 1 testified that, they sought an applicant who possessed the following three Preferred Experience/Qualifications: 1) Certification in Infection Control (CIC Certification), 2) a master’s degree prepared nurse, and 3) current experience. One selecting official testified that both selecting officials felt that recent experience was absolutely necessary for the position. While Complainant was listed as Qualified, she did not have current infection control experience. As a result, Complainant was not contacted for an interview and another individual, who met all of the Preferred Experience/Qualifications, including having current experience. The selecting officials for Vacancy 2 included the selectee from Vacancy 1 and one of the selecting officials from Vacancy 1. In the selection process, a scoring process for the applicants’ resumes was used. Vacancy 2 did not have the same qualification criteria as Vacancy 1. Instead, the criteria upon which the applicants’ resumes were scored on included the following: 1) Veteran; 2) VA Experience; 3) Master’s prepared; 4) CIC Certification; 5) years of Infection Control Experience with points for varying years of experience; 6) Data Collection Prep and Analysis, 7) Currently in an Infection Preventionist (IP) Role; 8) Hand Hygiene Program Management, 9) Management/Supervisor Experience; and 10) Project Management Experience. There were 106 applicants, and those with the highest scores were interviewed. The three highest scoring applicants had scores of 60, 50 and 50, and the Agency did not interview anyone with a score lower than 50. Complainant had a total score of 45 and was not selected for an interview. 3 2020003714 and 2020003715 An appeal by Complainant, through counsel, followed. In EEOC Appeal Nos. 2019004761 and 2019004762, the Commission affirmed the Agency’s final decision finding no discrimination. In the instant requests for reconsideration, Complainant argues that an objective evaluation of candidates must involve an analysis of their capabilities, and not simply whether the candidate had current experience in the position. Complainant also asserts that the selecting officials for Vacancy 1 were aware of her prior EEO activity because they were both named responsible management officials in at least one complaint. Complainant further states that one selecting official for Vacancy 2 was also named in a prior EEO complaint by Complainant. Complainant avers that the fact that the selecting officials were aware of Complainant’s prior EEO activity, coupled with Complainant’s non-selection for an interview and ultimately the positions was sufficient enough for an inference of discriminatory intent. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. Our initial appellate decisions already considered the arguments Complainant again presents in support of reconsideration. However, a Request to Reconsider is not an opportunity to relitigate the merits of a complaint. Instead, it is Complainant’s opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law; or that the decision will have substantial impact on the policies, practices or operations of the agency. Complainant has not demonstrated either of those criteria were met. The decision in EEOC Appeal No. 2019004761 and 2019004762 remain the Commission’s decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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. 4 2020003714 and 2020003715 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 September 29, 2020 Date