[Redacted], Stephany K., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Nov 3, 2022

Appeal No. 2022004259 (E.E.O.C. Nov. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stephany K.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (National Institutes of Health), Agency. Appeal No. 2022004259 Agency No. HHS-NIH-CC-065-19 DECISION On August 5, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 6, 2022 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. BACKGROUND During the relevant time, Complainant worked as a Clinic Research Nurse, GS-11, at the Agency’s Clinical Center (CC), Nursing Department (ND), Neuroscience, Behavioral Health and Pediatrics (NBHP) in Bethesda, Maryland. On April 24, 2019, Complainant filed the instant formal complaint alleging that the Agency discriminated against her based on sex (female) when, on February 22, 2019, she learned the Agency did not select her for a GS-12 Senior Clinical Research Position (H-CC-DH-19- 10323071). At the time of the alleged discrimination, her first level supervisors were RMO-1 (female) and RMO-2 (male). Both RMO-1 and RMO-2 are Clinical Managers in NBHP. RMO-3 (female), NBHP Nurse Manager was Complainant’s second level supervisor. RMO-4 (male) is a Clinical 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. 2022004259 2 Manager in NBHP but is not in Complainant’s chain of command. RMO-1. RMO-2, and RMO-4 all served as interviewers in the selection process. RMO-3 served as the selecting official for the Senior Clinical Research position. Complainant applied for the position of Senior Clinical Research Position, via USAjobs.gov, on October 17, 2018. Complainant alleged the Agency notified her, via email, she was eligible for further consideration for the position. Complainant asserted that she was qualified for the position because she was a Registered Nurse (RN) with 44 years of nursing experience and 40 years in research nursing. In addition, Complainant stated that she held a variety of research positions, including roles in leadership and management. The first-round interview panel interviewed four candidates for the Senior Clinical Research position, including Complainant. The panel asked each candidate the same behavioral health interview questions and scored each candidate separately based on their answers. Complainant’s first-round interview was with her first-level supervisors (RMO-1 and RMO-2) and the Clinical Team Lead (RMO-4). Both Complainant and the individual (male), who was ultimately selected for the position, were referred for a second interview. RMO-3 conducted the second interview and ultimately chose the selectee rather than Complainant. Complainant claimed the Agency pushed less qualified males ahead of highly qualified females and gave men opportunities for advancement. Complainant stated that male selectee was not the most qualified candidate, but he was chosen for the position. Complainant claimed that she was more qualified than the selectee. After the investigation into her complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on July 6, 2022, pursuant to 29 C.F.R. § 1614.110(b), finding no sex discrimination was established. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case 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 adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2022004259 3 Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. RMO-3, also the selecting official for the Senior Clinical Research position, explained that RMO-1, RMO-2, and RMO-4 interviewed the candidates first and then she interviewed them separately and made a selection based on the candidates’ interviews. Following the interviews, RMO-3 stated that she chose the selectee for the Senior Clinical Research position because she assessed him to be the best qualified for the position. RMO-3 stated that the selectee and Complainant were both Clinical Research Nurses who worked on the Behavioral Health Unit. She stated that the Senior Clinical Research position required experience in behavioral health and the ability to work with research participates in various protocols. RMO-3 stated that the selectee had been actively involved in research activities on the unit. In addition, the selectee was one of the CPI trainers in Behavioral Health and was assigned as Charge Nurse on evenings when working the shift. RMO3 also noted that the selectee was an active participate in training the staff on safety, administering research scales and other unit activities. By contrast, RMO-3 stated that Complainant admitted that she did not administer research scales because she had not completed the necessary training. However, she encouraged Complainant to get more involved in the research activities on the unit. RMO1 stated that, after his interview, the panel felt that the selectee did a good job and was found to have had more skills, staff trainings, primary nurse experience, experience with positive and negative scale systems, and involvement in the unit. RMO1 also acknowledged that Complainant did well during her interview. RMO1 noted, however, that Complainant was only able to give one example of a project she worked on. Moreover, she noted Complainant had assisted with the referenced project, but had not developed the project herself. RMO1 further stated that this past year, Complainant went part time and only worked on weekends so she was not as involved in the unit as the selectee. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these legitimate proffered reasons for the selection decision was a pretext masking discrimination based on sex. We acknowledge that Complainant’s appellate arguments challenge the qualifications and credentials of the selectee in comparison to her own. However, Complainant has not shown that the alleged disparities in qualifications between her and the selectee was “of such weight and significance that no reasonable person, in the exercise if impartial judgment, could have chosen the [selectee] over [her] for the job in question.” Cooper v. Southern Co., 39 F.3d 695, 732 (11th Cir. 2004); see also, Ash v. Tyson Foods, Inc., 126 S. Ct. 1195,1197-1198 (2006). The record supports a determination that Complainant appears to have a distinguished and extensive career, but she nevertheless did not establish that her qualifications were superior of the selectee for the subject position. 2022004259 4 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2022004259 5 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 November 3, 2022 Date