[Redacted], Marquitta B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 4, 2021

Appeal No. 2021002191 (E.E.O.C. Oct. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marquitta B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002191 Hearing No. 490-2018-00149X Agency No. 200I-0614-2018101206 DECISION On February 24, 2021, 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 January 29, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented on appeal are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing; and (2) whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race and/or sex (sexual orientation) when she was not afforded the opportunity to competitively apply for a Chaplain position. 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. 2021002191 2 BACKGROUND Complainant is a former employee of the Agency’s VA Medical Center (VAMC) in Memphis, Tennessee. Complainant had most recently worked at the Memphis VAMC as an AD-0060-0 Chaplain Resident Student from September 12, 2016, through May 26, 2017. As a Chaplain Resident Student, Complainant’s direct supervisor was the CPE Supervisor Chaplain (S1). S1’s immediate supervisor was the Chief of the VAMC Memphis Chaplain Service (S2). According to S2, he became the Service Chief in 2001, and he was the selecting official for all Chaplains and Chaplain Service administrative staff positions that were filled during his tenure. According to the record, the Agency’s Chaplain residency program is a one-year program, and the Chaplain Resident Students earn four units of Clinical Pastoral Education (CPE) upon successful completion of the residency program. In addition to Complainant, there were three additional Chaplain Resident Students (R1, R2, and R3) in the 2016-2017 class. Complainant left the residency program early and earned three CPE units for her participation in the VAMC residency. According to S1, Complainant told him that she was leaving the program early because she was moving to Atlanta, Georgia with her husband. Complainant had also worked at the Memphis VAMC from September 29, 2014, through March 6, 2015, as a Student Intern. She earned one CPE unit for her internship with the Memphis VAMC and had also earned three CPE units at a non-Agency residency program from 2015- 2016. Complainant averred that applicants do not need to have completed a full-year residency program to qualify for a Chaplain position with the Agency. In September 2017, a VAMC Memphis CPE Supervisor Chaplain retired. According to S2, he initially intended to hire another CPE Supervisor Chaplain for the resulting vacancy at VAMC Memphis, and he discussed the opportunity with a CPE Supervisor Chaplain based in Alabama (C1). S2 stated that C1 had completed the CPE Supervisor training at the same time as S1. S2 averred that C1, who is an African-American female, initially told him that she was interested in the position at VAMC Memphis. However, S2 stated that, when he contacted C1 again in September 2017 to confirm her interest, she informed him that she had already accepted a position at another VAMC. S2 averred that, when he learned that C1 had accepted another position, he decided to fill the Chaplain vacancy by direct hire. S2 explained that the direct hire process had become available for Agency Chaplain positions starting in November 2016. According to S2, he decided to use direct hire instead of posting the vacancy because he wanted to select someone he knew, someone who would not be a “disrupter.” S2 defined a “disrupter” as someone he did not know, who either had personality issues or for some other reason would not be a good fit for the team. According to S2, when filling a previous vacancy, he learned that two of the applicants on the certificate had lied about their qualifications for the position, which led him to be leery of hiring applicants with whom he was not already familiar. S2 stated that all the Chaplains he had hired were graduates of the VAMC Memphis CPE program, which meant that he knew them and that he was confident that they would do a good job for the veterans. 2021002191 3 The record contains Veterans Health Administration (VHA) Directive 1111, Spiritual and Pastoral Care in the Veterans Health Administration, which is dated November 22, 2016. According to the document, one of the changes in the new version of the directive “[a]llows VA medical facilities to approve non-competitive Chaplain staffing actions.” Report of Investigation (ROI) at 100. Specifically, the directive states: Individuals who have completed a 1-year (four units) Clinical Pastoral Education (ACPE CPE) Program in a VA medical facility and who meet all other VHA qualification requirements for chaplain are eligible for appointment without rating and ranking (i.e., non-competitive consideration) under the authority provided by 38 U.S.C. 7403(g) and 5 CFR 213.3102(a). This eligibility lasts for 1 year after the date of completion of the program. Individuals who complete a second year ACPE CPE or an inter-professional fellowship in a VA medical facility are eligible for a second year of consideration without rating and ranking. ROI at 101. The directive also states, “The medical facility must forward the selectee’s application documents to the NCC [National Chaplain Center] before making a final job offer.” Id. According to the Agency qualification standard, applicants for a Chaplain position at any grade must possess the following basic requirements: (1) an ecclesiastical endorsement dated within the past 12 months; (2) a Master of Divinity degree or equivalent educational qualifications; and (3) completion of at least two units of CPE or equivalent training. ROI at 127- 28. For the GS-11 Chaplain position, the qualification standard states: In addition to meeting the basic requirements, 2 years[’] experience, following completion of the basic education described under Education above which has demonstrated both practical pastoral knowledge and skill, and the ability to minister in a pluralistic setting. Supervised or guided pastoral experience completed during graduate professional education may be credited for up to 1 of the 2 years of required experience required for GS-11. Substitution of Education for Experience: Successful completion of a doctoral degree which is related to pastoral ministry, at an accredited college or university, may be substituted for 1 of the 2 years of required experience (unless the doctoral degree is being used to satisfy the minimum educational requirement). ROI at 128 (emphasis in original). The qualification standard indicates that, for the GS-12 level, in addition to the requirements for the GS-11 level, one year “of progressively responsible specialized professional experience equivalent in complexity and responsibility to the GS-12 level” is required. Id. S2 selected R1 for the Chaplain position. According to S2, R1 was eligible for direct hire because she had completed her four CPE unit residency at an Agency VAMC within the past 12 months and met all of the other requirements for the Chaplain position. 2021002191 4 S2 stated that, in addition to meeting these requirements, R1 demonstrated outstanding knowledge, skills, and potential during her residency and had received significant praise from patients and staff. An NCC Program Analyst (HR1) stated that, on October 4, 2017, S2 asked him to determine whether R1 met the qualification requirements for a Chaplain position. HR1 averred that he referred R1’s application materials to the Agency’s Board of Excepted Service Examiners (BESE), which has the authority to make qualification decisions. On October 30, 2017, HR1 informed S2 that the BESE had determined that R1 met the Agency Chaplain qualification requirements for the GS-11 level, but not at the GS-12 level. According to HR1, on November 2, 2017, S2 told him that he wanted to move forward with hiring R1. S2 stated that Complainant was not eligible for direct hire because she did not complete the four CPE unit residency or four consecutive units of CPE at an Agency facility within the past 12 months. S2 averred that Complainant also did not tell him that she had moved back to Memphis from Atlanta, so he was unaware that she was interested in a Chaplain position at the Memphis VAMC until he was contacted by an EEO Counselor regarding the instant EEO complaint. Complainant alleged that she contacted S2 several times in the fall of 2017, expressing interest in a Chaplain position at the Memphis VAMC. Complainant stated that she generally spoke to S2’s secretary, although she could sometimes hear S2 in the background. According to S2, R2 was also not eligible for direct hire because he had started his residency late and had only earned three units of CPE. S2 averred that R3 completed the four-unit residency but informed S1 and S2 that he would be attending a CPE Supervisor training program in Pennsylvania. The record reflects that R1 is Caucasian, and her sexual orientation is homosexual. Complainant alleged that S2 used the direct hire process to avoid hiring Complainant, who is African- American and heterosexual. Complainant noted that, if the Chaplain position had been posted competitively, she would have veterans’ preference in the hiring process over R1, who was not a veteran.2 Complainant averred that, of the last four Chaplains hired by S2, all of the Chaplains were Caucasian, and only one was heterosexual. Complainant alleged that S1, who is Caucasian and homosexual, colluded with S2 to hire another Caucasian and homosexual Chaplain. S2 denied that S1 was involved in the hiring of R1, and he denied considering R1’s sexual orientation or race during the hiring process. 2 The Commission has repeatedly held that veterans’ preference or status is not a protected basis for filing an EEO complaint and therefore such complaints are not within the purview of EEOC Regulations. See Devereux v. U.S. Postal Serv., EEOC Request No. 05960869 n. 1. (Apr. 24, 1997). To the extent that Complainant believes that the Agency is treating veterans or disabled veterans in a discriminatory manner, Complainant is advised to contact the Office of Federal Contract Compliance (OFCCP), the agency charged with such enforcement. 2021002191 5 Complainant alleged that R1 did not meet the qualifications for the Chaplain position at the GS- 11 or at the GS-12 grade. Complainant averred that R1 graduated from divinity school in 2015 but did not start working until July 2016. According to Complainant, she was more qualified than R1 because she had more ministry experience and seven units of CPE, compared to R1’s four units of CPE. An African-American Chaplain who was hired by S2 after his VAMC Memphis residency (C2) stated that, to his knowledge, this was the first time that a Chaplain was selected using direct hire rather than by posting the vacancy. C2 added that, in the past, S2 had consulted the Chaplains during the hiring process. According to C2, after S2 announced R1’s hiring, he told the other Chaplains that R1 “was not the most qualified.” ROI at 78. C2 averred that Complainant and R1 were similarly qualified for a Chaplain position. In a January 23, 2018, written statement, C2 stated that he was “bewildered” in December 2017 when S2 announced that R1 had been hired as a Chaplain through a direct hire process. ROI at 178. According to C2, the Chaplains expressed concern that they had been left out of the hiring process, and another Chaplain (C3) told S2 that she did not think that R1 was the most qualified applicant. ROI at 179. C2 averred, “[S2] responded after [C3]’s comment, that he agreed, that [R1] was not the most qualified individual.” Id. On February 7, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sexual orientation (heterosexual)3 when, on December 6, 2017, she was not selected for the GS-0060-11 Chaplain position. 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 EEOC AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s September 16, 2019, motion for a decision without a hearing. On January 25, 2021, the AJ issued a decision finding no discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 3 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2021002191 6 CONTENTIONS ON APPEAL On appeal, Complainant contends that R1 was not qualified for a Chaplain position with the Agency when she was hired because she did not have two years of post-graduate experience. Complainant argues that, in contrast, she did have the requisite two years of experience and that she would have had veteran’s preference if the position had been competitively posted. According to Complainant, S2 had to receive special approval from HR1 and the BESE to hire R1 because she did not meet the experience requirement. Complainant requests that the AJ’s decision be reversed, arguing that the AJ improperly weighed the evidence. Complainant contends that the Agency never provided a clear legitimate, nondiscriminatory reason for using the direct hire process. According to Complainant, the decision to use direct hire was a “thinly veiled attempt” to hire a less qualified White applicant over Complainant. Complainant also argues that a reasonable finder of fact could interpret S2’s statement about “disrupters” as a code word for racial minorities or Black applicants. In response to Complainant’s appeal, the Agency contends that Complainant has not identified a legal or factual error in the AJ’s decision without a hearing finding no discrimination. STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). 2021002191 7 ANALYSIS AND FINDINGS Decision without a Hearing We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We have carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant contends that R1 was not qualified for the Chaplain position, even at the GS-11 level, because she did not have two years of experience after receiving her Master of Divinity degree. Complainant also advances the idea that S2, HR1, and the BESE found that R1 was not qualified for the Chaplain position but made an exception to hire her at the GS-11 level. However, HR1 relayed that the BESE found Complainant to be qualified for the GS-11 Chaplain position, and we find that no reasonable finder of fact could find otherwise. Complainant further suggests that, in S2’s statement that he preferred the direct hire process to avoid “disrupters,” “disrupter” was a code word for minorities. However, we find that this is not a genuine issue. We agree with the AJ that S2 explained that, to him, “disrupter” referred to individuals who had not previously trained or worked at the Memphis VAMC. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). 2021002191 8 The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). In a selection case, a complainant can attempt to prove pretext by showing that her qualifications are “plainly superior” to those of the selectee. See Patterson v. Dep’t of the Treasury, EEOC Request No. 05950156 (May 9, 1996). The Agency’s legitimate, nondiscriminatory explanation for hiring R1 through the direct hire process was that S2 wanted to hire someone he was familiar with and who would do a good job, and that R1 was the only member of the 2016-2017 residency class who was eligible for direct hire and was actively seeking employment in Memphis. As evidence of pretext, Complainant argues that S2’s use of the term “disrupter” shows that he was seeking to exclude African- American and/or heterosexual applicants. However, as discussed above, we find that no reasonable finder of fact could find for Complainant on this issue. Although Complainant highlights C2 and C3’s surprise at the hiring of R1 through direct hire, this is insufficient to establish pretext for discrimination. According to the record, the direct hire process had only become available for the Chaplain position in late 2016. C2 stated that, as far as he knew, Complainant and R1 had similar qualifications for the Chaplain position. We find that, even drawing all justifiable inferences in Complainant’s favor for the purposes of a decision without a hearing, Complainant cannot establish pretext for discrimination based on race and/or sexual orientation by the preponderance of the evidence in the record. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order fully implementing the decision without a hearing 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. 2021002191 9 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. 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. 2021002191 10 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 4, 2021 Date