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

Equal Employment Opportunity Commission

Feb 23, 2022

Appeal No. 2021001740 (E.E.O.C. Feb. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willetta L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001740 Hearing No. 420-2020-00129X Agency No. 2001-V107-2019102943 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 December 22, 2020 final order 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 period at issue, Complainant was a former Agency employee and applicant for various positions at the Agency's VA Medical Center in Tuskegee, Alabama. On April 5, 2019, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On July 9, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on sex (female) and in reprisal for prior protected EEO activity when: 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. 2021001740 2 A. on December 17, 2018, Complainant was not referred for the position of Human Resources Specialist (ER/LR), GS-201-9/11, under vacancy number CBAC- 10359325-19-TC; B. on March 28, 2019, Complainant was found ineligible for the position of Human Resources Specialist (Human Resources) (Quality Review), GS-201-12, in Tuskegee, Alabama, under vacancy number CBAC-10433294-19-GW because length of specialized experience did not meet the qualification requirements; C. on April 11, 2019, the Supervisory Staffing Specialist send an email to the Human Resources (HR) Chief that indicated his employees were starting to feel threatened by Complainant and feared “retaliatory actions;” D. on April 11, 2019, Complainant’s privacy was violated when the HR Chief sent the Medical Center Director an email about Complainant’s application for employment and copied various Union officials on the email; additionally, Complainant’s Freedom of Information Action (FOIA) request, pertaining to the above, was not responded to within the twenty-business day response time; E. on May 12, 2019, Complainant was referred but not selected for the position of Human Resources Specialist (ER/LR), GS-201-12, in Tuskegee, Alabama, under vacancy number CBAC-10443054-19-VDC; F. on May 12, 2019, Complainant was referred but not selected for the position of Human Resources Specialist (ER/LR), GS-201-12, in Tuskegee, Alabama, under vacancy number CBAC-10439218-19-VDC; G. on May 13, 2019, Complainant was not offered the position of Local Reasonable Accommodation Coordinator (LRAC) through direct hire authority;2 and H. on October 1, 2019, Complainant was notified about her ineligibility for the position of Human Resources Specialist, (Emp Rel/Labor Rel), GS-12, vacancy number 10608533, located in Tuskegee, Alabama. After its 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 Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing and subsequently issued a bench decision in favor of the Agency. The Agency issued its final order adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed. 2 Complainant did not raise sex as a basis for discrimination for this claim. 2021001740 3 Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Here, the AJ dismissed claims A, C, and D on several procedural grounds. First, the AJ dismissed claim A for untimely EEO Counselor contact, pursuant to pursuant to 29 C.F.R. § 1614.107(a)(2). The claim at issue occurred on December 17, 2018, and Complainant did not contact an EEO Counselor until April 5, 2019, which the AJ found to be well beyond the 45-day limitation period. See 29 C.F.R. § 1614.105(a)(1). Second, the AJ dismissed claim C, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The AJ found that the claim failed to support that Complainant was an aggrieved individual or suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dept of the Air Force, EEOC Request No. 05931049 (April. 21, 1994). Finally, the AJ dismissed claim D, pursuant to 29 C.F.R. § 1614.109(b), for failure to state a claim. See also, 29 C.F.R. § 1614.107(a)(1). Specifically, the AJ noted that the essence of this claim involved Complainant’s allegation that she did not receive a timely response to her FOIA request. The AJ determined that there is no remedial relief available to Complainant on this matter through the EEO complaint process, and the proper forum for Complainant to have raised this claim was though the FOIA process itself. Regarding the merits of the remaining claims (B, E - H), the AJ determined that the Agency articulated legitimate, non-discriminatory reasons for not selecting Complainant for each of the positions at issue. The AJ found that the Agency had taken the following actions: cancelled one position vacancy announcement (claim B); made no selection from the vacancy announcement’s certificate of eligible candidates (claim E); selected two candidates who had higher matrix rating scores than Complainant (claim F); did not select Complainant because she did not apply for the vacancy (claim G); and determined that Complainant was not eligible for a position after she failed to submit a SF-50 reflecting that she had one year of Employee Relations/Labor Relations experience (claim H). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. 2021001740 4 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. 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. 2021001740 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 February 23, 2022 Date