[Redacted], Ivy S., 1 Complainant,v.Dennis R. McDonough, Secretary Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Oct 13, 2021

Appeal No. 2020003548 (E.E.O.C. Oct. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ivy S.,1 Complainant, v. Dennis R. McDonough, Secretary Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003548 Hearing No. 490-2018-00049X Agency No. 200I-0614-2017102628 DECISION On May 24, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 23, 2020 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse, Nurse II, at the Agency’s VA Medical Center in Memphis, Tennessee. Complainant was hired as a Staff Nurse on October 19, 2009, and subsequently transitioned to a Traveling Staff Nurse position in the Phoenix, Arizona VA Medical Center. From September 2016 to June 2017, Complainant was assigned to the Memphis VA Medical Center. 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. 2020003548 2 On May 10, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African- American), sex (female), and age (62) when: 1. Since 2012 (and ongoing), the Associate Director of Patient Care and the Chief of Nurse Operations have sabotaged her attempts to be hired by rejecting her applications despite the recommendation of the nurse managers, providing false statements, and making comments she should apply elsewhere; and 2. On May 16, 2017, Complainant learned she “did not make the cut” to be selected for the position of Registered Nurse after interviewing at a job fair with the Nursing Units 1C/1D and the Mental Health Inpatient Psychiatry at the Memphis VAMC. Complainant identified four individuals as responsible for the alleged ongoing discrimination: the Associate Director for Patient Care Services/Nurse Executive (AD) (Female, 61, Native American/ Jewish White)); the Chief of Nurse Operations (Chief) (Female, age 58, White); the Manager (M1) (female, age 59, Black) and the Assistant Manager (AM) (female, White). From August 22, 2014, to February 28, 2017, Complainant claimed that she applied for 62 positions and was not selected for any of them. Complainant alleged that she was told in October 2016, that she was selected for an Emergency Room Nurse position, but was later informed that she was not selected. When Complainant asked AD why she was not hired, she was informed it was because she had received negative references. IF at 81, 88, 160, 145-146, 207 and 249. The Chief recommended that Complainant look for positions in the private sector because she could not be guaranteed a position at the Memphis VA. IF at pp. 81, 89 and 145. In May 2017, Complainant was interviewed at a job fair by M1 and AM. She was seeking the position of Registered Nurse with the Nursing Units 1C/1D and the Mental Health Inpatient Psychiatry at the Memphis VAMC. M1 affirmed that although Complainant did meet the qualifications, she was not selected for the position because of how she answered the behavioral interview questions. M1 noted that Complainant did not answer any of the questions the way that she should have given that she had worked as a Travel Nurse on the floor in that department. Further, Complainant did not directly answer the interview questions and seemed to not understand things that she should have known from working on the floor. IF, Affidavit 7-7, p. 180-181 and Affidavit 7-28, p. 458. On May 16, 2017, Complainant learned she “did not make the cut” to be selected for the position. The selectee for the position was a Black female, between the ages of 40 and 50. The selectee had superior qualifications to Complainant, based on her prior work experience. IF at 182, 183, 188 and 460. More specifically, AM affirmed that the selectee possessed seven to ten years of experience in psychiatry; was knowledgeable in the treatment and disease process of schizophrenia, dementia, and Post Traumatic Stress Disorder (PTSD). During her interview, the selectee responded with the correct actions to care for a suicidal and violent patient. Finally, the selectee demonstrated critical thinking skills and the ability to work well with others. As a result, the selectee was selected as the best qualified candidate for the position. IF at 459. 2020003548 3 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter granted the Agency’s motion and issued a summary judgment decision finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary. Here, however, Complainant has failed to establish such a dispute. Although Complainant believed that she was being “blackballed,” she failed to offer evidence that the Agency’s actions were due to her race, sex or age. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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: 2020003548 4 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. 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. 2020003548 5 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 October 13, 2021 Date