[Redacted], Soo C., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMar 15, 2021Appeal No. 2020003296 (E.E.O.C. Mar. 15, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Soo C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003296 Hearing No. 520-2019-00253X Agency No. 200H-0523-2018101796 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 6, 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. At the time of events giving rise to this complaint, Complainant worked as an Assistant Nurse Manager at the Agency’s Boston Healthcare System in West Roxbury, Massachusetts. On April 28, 2018, Complainant filed an EEO complaint alleging that the Agency harassed her on the bases of national origin (Native American) and age (65), and in reprisal for filing the instant EEO complaint, from December 20, 2017, through September 17, 2018, when: 1. Complainant was required to “check-in” with management on a daily basis; 2. Complainant was made to work on off-central computers in an open area; 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. 2020003296 2 3. Complainant was denied conclusions of a fact-finder’s report conducted during the periods of her detail assignments; 4. Complainant was told that she was the “aggressor” and questioned regarding the reason for pursuing her doctorate degree. Complainant also alleged that the Agency discriminated against her based on her national origin and age, and in reprisal for filing the instant EEO complaint, when: 5. on December 20, 2017, Complainant was directed to be detailed to a Staff Nurse position in Urgent Care, Jamaica Plain Division; 6. on January 11, 2018, Complainant was directed to be detailed to a Staff Nurse position in Employee Education, Brockton Division; 7. on February 26, 2018, Complainant learned that she was not selected for the position of Resource Nurse, Jamaica Plain, from VISTA email announcement number 79982993; 8. on April 24, 2018, Complainant learned that she was not selected for the position of Veteran Health Education Coordinator (VN-0610-00), from vacancy announcement number CAZW-10157570-18-KNA; 9. on June 5, 2018, Complainant learned that her submission for the nursing newsletter was declined; and 10. on September 17, 2018, Complainant learned that she was not selected for the position of Shared Governance Coordinator. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency.2 The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 2 The AJ noted that Complainant alleged two new claims of discrimination when she was “forced to retire” and when the Agency failed to return her to her original position after the investigations into the complaints by two of Complainant’s subordinates. However, the AJ noted that neither claim was properly before her because they were not raised at any time prior to Complainant’s response to the Agency’s Motion for Summary Judgment. Accordingly, this decision will also not consider these two new claims. 2020003296 3 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 she must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. On appeal, Complainant largely argued that the AJ ignored statements provided by two witnesses for claims 7 and 10. Regarding claim 7, the witnesses stated that two interviewers were opposed to Complainant’s selection. However, we note that the witnesses did not provide evidence of any discriminatory motive and they specified that the opposition was due to the belief that Complainant lied on her resume and during the interview. ROI at 140, 150. Nevertheless, the Agency reposted the vacancy and convened a different interview panel to make a selection for this position. ROI at 148. For claim 10, Complainant argued that the selectee was preselected, and asserted that the two witnesses raised concerns when an interviewer inappropriately gave the selectee the interview questions prior to her interview. However, the Commission has found that even if preselection occurred, it would not be unlawful unless Complainant can show that the preselection was driven by discriminatory animus. See Nickens v. Nat’l Aeronautics Space Admin., EEOC Request No. 05950329 (Feb. 23, 1996). Here, the two witnesses did not show that any preselection was discriminatory. Further, the interviewers stated that Complainant had no Shared Government experience, while the selectee possessed this experience and provided examples. ROI at 165, 169, 173, 181. We find that Complainant also argued facts that were either not in dispute or not material. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2020003296 4 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal,3 we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 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: 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. 3 Complainant filed a Motion to Strike the Agency’s response brief. With her motion, Complainant provided a copy of an email from Agency Counsel, sent on March 23, 2020, in which she asked that Complainant’s attorney serve her via email due to the pandemic. However, Complainant’s attorney mailed Complainant’s appeal, and Agency Counsel declared that she did not receive it until April 16, 2020. As such, we will consider the Agency’s response brief as timely and deny Complainant’s Motion to Strike. 2020003296 5 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. 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 March 15, 2021 Date Copy with citationCopy as parenthetical citation