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

Equal Employment Opportunity Commission

Dec 21, 2021

Appeal No. 2021000894 (E.E.O.C. Dec. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Waneta F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000894 Agency No. 200I-0508-2020100336 DECISION 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 October 19, 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., 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 at the Agency’s VA Medical Center in Decatur, Georgia. On January 7, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on race (Black), sex (female), and age (YOB: 1957) when, on September 25, 2019, Complainant was not selected for the position of Nurse Practitioner (NP) in the Substance Abuse Treatment Program (SATP), Internal Atlanta VAHCS Announcement. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity 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. 2021000894 2 Commission (EEOC or Commission) Administrative Judge (AJ). The record does not indicate whether Complainant responded to the notice. On October 19, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. 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 complainant to prevail, she 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 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, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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). 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. 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency articulated legitimate non-discriminatory reasons for not selecting Complainant for the subject position. Complainant’s second level supervisor (S2) (Black, female, 46), the SATP Medical Director (White, female, 56) and the SATP Physician (White, female, 50) were members of the selection committee for the position at issue. Although the position vacancy opened on August 7, 2019 for internal candidates (which included Complainant), the selection committee members explained that no internal candidate was selected. Collectively, the selection committee members explained that all of the internal candidates lacked the experience and certifications they sought. Because no internal selections were made, The Medical Director explained that an external candidate (Black, male, age unknown) was selected for the position because he had the preferred qualifications, which included experience in treating individuals 2021000894 3 with substance abuse disorders; experience in consultation/liaison psychiatry, and he had a buprenorphine waiver.2 The Medical Director stated that none of the internal candidates, including Complainant, had these preferred qualifications. The selection panel members also noted that Complainant had previously applied for the same position and received an interview for the position in 2018. Because there was no change in Complainant’s resume from when she initially applied in 2018, the selection panel members decided that there was no need to interview Complainant again for the instant position. Specifically, S2 explained that she had interviewed Complainant previously and there was no indication then or in 2019 that Complainant had experience working as a Nurse Practitioner in a Substance Use Disorder (SUD) program; or had a Suboxone waiver; or experience prescribing Suboxone, and the workload of the position did not allow for time to train a candidate in these needed areas. The SATP Physician noted that while Complainant worked in the Substance Abuse area of the VA, Complainant did not, and has not, worked as a Nurse Practitioner in Substance Abuse. The SATP Physician clarified that the duties of a Registered Nurse, Complainant’s position, differed from that of a Nurse Practitioner because the Nurse Practitioners makes diagnoses, constructs treatment plans, prescribes medications, orders tests, and consults with other providers. We note that Complainant testified that she had one of the preferred qualifications - a Buprenorphine waiver. However, our review of the cover letter Complainant sent attached to her resume reflects that Complainant had met the qualifications to receive a Buprenorphine waiver but had not yet received the waiver. In the cover letter, Complainant stated, in pertinent part, “I have completed the Medication Assistance Treatment (MAT) Buprenorphine course and I will be applying for my Buprenorphine X-Waiver this month.” After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, sex, or age. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2 This waiver allows providers to prescribe the drug buprenorphine, for the treatment of opioid use disorders. 2021000894 4 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. 2021000894 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 December 21, 2021 Date