[Redacted], Roxanne H., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 14, 2021

Appeal No. 2020000296 (E.E.O.C. Jan. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxanne H.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000296 Hearing No. 570-2017-01299X Agency No. 2004-0688-2017101205 DECISION On October 15, 2019, 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 August 30, 2019 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 Nursing Assistant, GS-0621-05 at the Agency’s Veterans Affairs Medical Center in Washington, D.C. Complainant worked in this position from July 16, 2012 until her retirement in August 2016. On January 12, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (68) and in reprisal for prior protected EEO activity when: 1. she learned on August 26, 2016, that she was denied a promotion to GS-6; and 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. 2020000296 2 2. she learned in August 2016 that she was denied four years of back pay at the GS-6 level. In July 2012, Complainant received, as reasonable accommodation, a reassignment into the Women’s Health Clinic. Complainant admitted being told at the time that she would have no opportunity for promotion while in this assignment. In the subsequent four years, Complainant received “Fully Successful” performance ratings. The performance appraisal in Fiscal Year 2013 identified Complainant’s position as Health Technician in Fiscal Year 2013. However, the appraisal contains a handwritten notation indicating that the position description was “administrative error.” The appraisals for Fiscal Years 2014 and 2015 referred to Complainant as a Nursing Assistant. The record contains an email from the Agency in February 2014, explaining that Complainant was not a Health Technician; the Agency only had a Form SF-52 identifying Complainant as a Nursing Assistant. If she sought to be a Health Technician, Complainant needed to compete for the position. Agency representatives repeated this explanation to Complainant’s union official in subsequent emails. Complainant’s supervisor in the Women’s Health Clinic (S1) acknowledged that Complainant sought a promotion to the GS-6 level. S1 then inquired with Labor Relations, which explained that Complainant’s assignment was not a targeted position and therefore not eligible for promotion. S1 also noted that she clarified to Complainant that Nursing Assistant positions in the Women’s Health Clinic were GS-5 positions. Complainant argued that she was supposed to have been promoted to the GS-6 level prior to her assignment to the Women’s Health Clinic, but her supervisors at the time did not give her the promotion. Complainant asserted she applied to be a Health Care Technician, a GS-7 position, several times with her most recent application in April 2014. Nothing in the record indicates that Complainant ever received a promotion. 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 Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for summary judgment and issued a decision finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency’s human resources department confirmed that she should have been paid at the GS-6 level. In support of her argument, Complainant quotes an email in which the Human Resources official states, “if the position [Complainant] is assigned to has a target grade, we must promote her within the prescribed timeline of the target grade unless she issues with performance that has caused management to disprove her promotion. 2020000296 3 Bottom line up front, [Complainant] should never had been placed in a position with a target grade.” Accordingly, Complainant requests that the Commission reverse the final order. 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). An AJ may issue a summary judgment decision 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 carefully reviewed the record and find that it is adequately developed. To successfully oppose summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 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). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 at n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2020000296 4 Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the Agency has articulated legitimate, non-discriminatory reasons for not promoting Complainant to the GS-6 position and for not providing her with four years of back pay. Complainant accepted, as reasonable accommodation, an assignment to the Women’s Health Clinic. The assignment was not a targeted position, which meant that Complainant was not eligible for further promotion. Therefore, Complainant could not have been promoted to the GS-6 position, nor was she eligible for back pay during the period she asserts she should have been promoted. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. She has not done so. Complainant admits in her affidavit that when she accepted the assignment to the Women’s Health Clinic, she was told that it did not carry promotion potential. Complainant does not dispute that the accommodation was reasonable. In fact, Complainant affirmatively states that she was not accommodated by the Agency until her assignment to the Women’s Health Clinic. Moreover, Complainant’s argument that she was told she would receive a promotion to GS-6 is contradicted by the record. At no point does Complainant provide evidence she was actually promoted; the record demonstrates she received only one Form SF-52, evidencing her assignment and pay grade, and Complainant does not indicate she was unaware that she remained at the GS-5 level the entire time she worked in the Women’s Health Clinic. Further, the language Complainant quotes on appeal is unavailing. While the human resources official was quoted correctly, the official was articulating what should have happened if Complainant was in a targeted position. Complainant offers no evidence that she was. Thus, the official’s explanation simply does not apply. Construing the evidence in the light most favorable to Complainant, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds no basis to disturb the AJ's summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. 2020000296 5 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. 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. 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). 2020000296 6 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. 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 January 14, 2021 Date