[Redacted], Donette A., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 25, 2021Appeal No. 2021001451 (E.E.O.C. May. 25, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donette A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001451 Agency No. 2004-V106-2019101353 DECISION On December 29, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 1, 2020 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Chief Nurse, Mental Health, Recruitment & Surgery (Nurse IV) at the Agency’s Durham VA Health Care System (VAHCS) in Durham, North Carolina. On April 12, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on race (Caucasian), sex (female), age (YOB 1963), and in reprisal for protected EEO activity (current EEO activity) when, on or around December 11, 2018, she was notified that she was not selected for the position of Associate Director of Patient Care Services, VN-5, Job Announcement Number CBBN-1324097-19-AJV. Following an investigation, Complainant requested that the Agency issue a final decision. The Agency issued the instant final decision on October 2, 2019, finding no discrimination.2 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. 2021001451 2 This appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-party 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). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Complainant worked as a Chief Nurse, Mental Health, Recruitment & Surgery (Nurse IV) at the Durham VAHCS since August 2014. The Associate Director of Patient Care Services (African- American, female) was Complainant’s supervisor. The Durham Medical Center Director (Caucasian, male, YOB 1964) was Complainant’s second-level supervisor, also the selecting official for the position Associate Director of Patient Care Services. On October 2, 2018, the Agency posted Vacancy Announcement CBBN-1324097-19-AJV for the position of Associate Director of Patient Care Services. Complainant submitted her resume in consideration for the subject position. Following the closing of the vacancy announcement, a Human Resources (HR) Specialist reviewed the candidates’ resumes and transcripts to determine if the candidates met the minimum qualifications for the subject position. The HR Specialist then issued a Certificate of Eligibles, that contained the names of the candidates who were referred for further consideration. Complainant was among the 47 candidates referred. The Medical Center Director, also the selecting official, requested that a review be performed of the 47 candidates, so that interviews would be limited to those with the highest scores. 2 The Agency reiterated that it had properly dismissed three claims for untimely EEO Counselor contact, in January 2019. This matter was not expressly contested and will not be addressed further herein. 2021001451 3 The VISN 6 Nursing Officer/Quality Management Officer (“Rater 1”) (Caucasian, female, YOB 1965) and the Durham VAMC Nurse Manager, Deputy Chief of Quality, Safety and Value Service (“Rater 2”) (African-American, female, over 40) reviewed and evaluated the candidates’ resumes and required documents. Each of the raters reviewed and scored the candidates separately and then the scores were combined for an overall score. Candidates were rated in nine categories. Three categories were worth 1-5 points: education, VA experience, and Board certification. Six categories were worth 1-10 points: current VA nurse executive or equivalent level; experience with union contracts and/or labor partners; participation and work on regional, VISN and national committees and or workgroups; clinical leadership; business acumen, and experience building coalitions. Based on these factors, the raters reviewed the resumes of all 47 candidates, resulting in overall scores ranging from 3 point to 64 points. The raters used 59 points as the cut-off for referring the three candidates (two Caucasian males, one African American female) to the selecting official for an interview. Complainant’s overall resume score by the raters was 56 and she was not referred for interview. Following the interviews, the selectee (African American female, YOB unknown, but younger than Complainant) was chosen.3 Rater 1 stated that she used a scoring grid and Complainant’s overall score was 50/75. Specifically, Rater 1 explained she gave Complainant full points in the following areas: Education (5/5), Board Certification (5/5), Clinical Leadership (10/10), Business Acumen (10/10), and Building Coalitions (10/10) based on her submitted documents. The Rater 1 further noted that Complainant had been an ACNS for 4 years (2/5 points) and she also had been SPS surveyor for VISN and other survey processes (8/10). She stated, however, she noted Complainant did not serve as an acting/detailed or permanent ADPCS (0/10). The Rater 1 also rated Complainant’s score as 0/10 on experience with union contracts/labor partners. Rater 2 gave Complainant a score of 62. Specifically, Rater 2 noted that Complainant had a PhD, 2 years as an Associate Chief Nurse, Board certification, experience with union contracts and/or labor partners, participation and work on network, VISN, and national committees, clinical leadership, business acumen and experience building coalitions. The selecting official stated that he met with Complainant to discuss why she was not referred for an interview. He stated that he showed Complainant a blinded component of the resume scoring which indicated that her resume lacked in executive experience and union experience. The selecting official further stated that he and Complainant discussed her resume and where it could use improvement for an executive position. The selecting official stated that the selectee was chosen because she had a better written resume for the executive level position, displaying people management skills, process improvement knowledge and extensive experience, strategic thought process, and positive personality. 3 Rater 1 gave the selectee a higher score than Complainant and Rater 2 a slightly lower score. However, the selectee’s combined overall score was 62, making her eligible for an interview. 2021001451 4 Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these legitimate proffered reasons for the selection decision was a pretext masking discrimination based on race, sex, or age. With regard to her further claim of unlawful retaliation, there is no evidence that Complainant engaged in any protected activity prior to the selection process at issue. Complainant has not shown that the alleged disparities in qualifications between her and the selectee was “of such weight and significance that no reasonable person, in the exercise if impartial judgment, could have chosen the [selectee] over [her] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). While the record supports a determination that Complainant appears to have a distinguished career and many achievements, she nevertheless did not establish that her qualifications were superior to of the selectee for the subject position. CONCLUSION We 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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. 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 2021001451 5 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, a 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. 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. 2021001451 6 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 May 25, 2021 Date Copy with citationCopy as parenthetical citation