[Redacted], Kristle L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionDec 2, 2021Appeal No. 2020003816 (E.E.O.C. Dec. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kristle L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003816 Agency No. 2003-0667-2018106394 DECISION On June 5, 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 May 7, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Registered Nurse (RN), Grade III, Quality Management (QM) Coordinator/Accreditation Specialist at the Agency’s Quality, Safety, Value (QSV) for the Overton Brooks VA Medical Center in Shreveport, Louisiana. Complainant’s first-level supervisor (S1) was an RN Grade IV and the QSV Chief (Caucasian, female, age 63); Complainant’s second-level supervisor (S2) was the Medical Center Director (Caucasian/white male, age 50). 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 2020003816 On September 19, 2018, Complainant contacted an EEO Counselor. During informal EEO counseling, Complainant withdrew from an agreement with management to attempt alternative dispute resolution. On October 17, 2018, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her because of her race (African American), disability (bilateral knee degenerative joint disease), age (57), and in reprisal for engaging in protected EEO activity when: A) On August 7, 2018, Complainant was denied a detail to a higher-level Quality Management (QM) position; B) On August 20, 2018, Chief of QM, denied Complainant entrance into the Agency’s Leadership Development Institute (LDI) training program; C) On October 11, 2018, Complainant became aware the vacancy position for Deputy Chief of QSV, Announcement No. CBBP-10182217-18-RD, was returned/cancelled; and D) On October 26, 2018, Complainant became aware of her non-selection/failure to promote for the Chief Nurse of Education and Training Service (ETS), position, Announcement No. CBBP-10298203-18 KML. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, Complainant subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal and through her attorney, Complainant contends that all of the Agency’s explanations for the alleged discrimination were pretextual. Regarding Claim (A), Complainant states that the Agency had denied advancement above her current position that she has held since 2013, but then created the QSV Deputy Chief position for the benefit a younger, Caucasian, male, coworker (CW1) with less experience than Complainant. Regarding Claim (B), Complainant asserts that she had previously been interviewed as part of her prior applications for the LDI training program, but after S1 became her supervisor Complainant was not interviewed before management selected another younger, Caucasian, male coworker (CW2) for the LDI opportunity. Concerning Claim (C) Complainant challenged the legitimacy of the cancellation of the permanent QSV Deputy Chief position because this cancellation occurred shortly after Complainant was told that she was the top candidate and shortly after she had contacted the EEO Counselor. Regarding Claim (D) Complainant asserts that S1 was selected instead of her, based on race, because Complainant matched S1 in terms of qualifications for that promotion. 3 2020003816 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). The Commission reviews disparate treatment claims by applying the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Complainant 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 Agency’s employment actions. See Furnco Constr. 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 Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). Once the Agency has met the second burden, Complainant bears the ultimate responsibility to persuade us by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). Complainant withdrew her request for a hearing before an AJ. In so doing, Complainant waived her opportunities to have an AJ make credibility determinations and for her legal representative to cross-examine witnesses. We assume, as did the Agency, that Complainant established her prima facie case in each claim. We now examine the merits of the Agency’s stated reasons for the contested decisions at issue. Regarding Claim (A), S2 stated that C1 was detailed to the QSV Deputy Chief to provide C1 management experience because C1 had recently graduated from a year-long Healthcare Leadership Development Program (HCLDP) course. Unlike C1, Complainant had not completed the HCLDP course. Nevertheless, in his sworn statement, S2 said he had encouraged Complainant to pursue the HCLDP course through her Personal Development Plan. Additionally, S2 stated that if Complainant completed that same course, then S2 would likewise provide Complainant a detail in a management position. Regarding Claim (B), S1 stated that she had supported Complainant’s candidacy for the LDI program but that she was not the LDI selecting authority in 2018. S1 stated further that Complainant was one of twelve candidates who had applied for the 2018 LDI within their region or Veterans Integrated Services Network (VISN). S1 stated that, although Complainant’s LDI application was forwarded from their facility, Complainant was later not interviewed because she had been ranked eighth when only the top seven candidates from their VISN were referred for further LDI consideration. 4 2020003816 Regarding Claim (C), the RN who was then temporary Acting QSV Chief (African American, female, age 52) explained that, as Acting QSV Chief, she had declined to make a selection for the position because she thought that selecting a QSV Deputy Chief was unnecessary under her management. The Acting QSV Chief decided to defer decisions about the QSV Deputy Chief to allow the newly selected permanent QSV Chief to make the decision. Regarding Claim (D) concerning S1 being selected over Complainant, Complainant acknowledged that both S1 and Complainant had equivalent credentials and equally competitive educations. In such circumstances, especially involving filling a specialized management-level position, the Agency had greater discretion in choosing between Complainant and S1 as equally qualified candidates absent other evidence of discrimination. Marquitta B. v. Dep’t of Agric., EEOC Appeal No. 2020000410 (June 3, 2021) citing Wrenn v. Gould, 808 F.2d 493 at 502 (6th Cir. 1987). Here, there is simply no evidence to support Complainant’s accusation that the Agency’s choice for promotion to ETS Chief was unlawfully motivated. In sum, Complainant has failed prove, via preponderant evidence, that any of the Agency’s justifications were unworthy of credence or a pretext to unlawful animus against Complainant based on race, age, or disability. Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Further, although the events in Claim (C) and in Claim (D) occurred after Complainant’s contacted with the EEO counselor, Complainant failed to prove, by a preponderance of the evidence, that retaliatory animus play any role in these matters. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision, finding no discrimination. 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. 5 2020003816 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit 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 her request and arguments to the Director, OFO, EEOC, via regular mail addressed to P.O. Box 77960, Washington DC 20013, or by certified mail addressed to 131 M St. NE, Washington DC 20507. In the absence of a legible postmark, 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. 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). 29 C.F.R. § 1614.403(g). Either party’s request 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. 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. 6 2020003816 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 December 2, 2021 Date Copy with citationCopy as parenthetical citation