James S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 29, 2020

2019001842 (E.E.O.C. Jul. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 James S.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019001842 Agency No. 200I-0534-2017104623 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 31, 2018 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, VN 1 at the Agency’s Veterans Medical Center in Charleston, South Carolina. On October 4, 2017, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race (African-American), sex (male), and age (YOB: 1954) when, on July 5, 2017, he was notified that he would be paid as a Graduate Nurse Technician (“GNT”) retroactively to June 25, 2017, even though he had completed his Bachelors of Nursing Degree (“BND”) on May 6, 2017. 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. 2019001842 2 After the investigation of the accepted claim,2 the Agency provided Complainant with copies of the reports of investigation and notices of the right to request a hearing before an EEOC Administrative Judge (AJ) or a final decision within thirty days of receipt of the correspondence. The record does not indicate whether Complainant responded to the Agency’s notice. On October 31, 2018, 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). The Agency, in its final decision, determined that Complainant failed to establish even a prima facie case of discrimination. On appeal, Complainant argues that, contrary to the Agency’s final decision, he has established a prima facie case for discrimination based on his race, age, and sex. Complainant asserts that the Agency required that he obtain a registered nursing (“RN”) license before the Agency would grant his GNT appointment, even though the Agency granted a GNT appointment to another person (“Comparator”) (African American, female, under 40 years old) without requiring the Comparator earn an RN license. Complainant explains that the GNT position is assigned to a person who has graduated from a nursing degree program and is held during the period before a person earns an RN license. Consequently, Complainant asserts that there are no license requirements for a GNT appointment and the only requirement for this appointment is completion of a nursing program degree. Complainant further asserts that because he earned his BSN degree on May 6, 2017, his GNT appointment should have been retroactively applied to this date instead of being retroactively applied to June 25, 2017. 2 The record indicates that Office of Employment Discrimination Complaint Adjudication ordered that the Agency conduct a supplemental investigation into Complainant’s complaint. 2019001842 3 Finally, Complainant disputes the Agency’s reasoning that he failed to establish a prima facie case for discrimination because the Comparator never received her GNT appointment. Complainant acknowledges that the record indicates that the Comparator was granted a GNT appoint effective August 6, 2017, but that the Comparator resigned from the Agency on August 4, 2016. Complainant reasons that the process the Comparator received for her GNT appointment was different from his process. Here, the record reflects that a GNT appointment does not require a RN license. We note that a copy of Complainant’s July 5, 2017 tentative offer indicates that he was given a “temporary appointment as a GNT pending completion of the VetPro and Boarding by the NPSB.” The offer further indicates that the effective date of Complainant’s appointment was June 25, 2017 and notes that Complainant would be converted to a permanent RN appointment “upon the completion of VetPro and boarding.” The record reflects that Complainant received his RN license on June 30, 2017. In contrast, on November 15, 2017, the Agency offered the Comparator a GNT appointment even though she had not obtained an RN license and had only completed her associates nursing degree. Based on this evidence of what appears, at least initially, as disparate treatment, we determine Complainant has established a prima facie case of sex and/or age discrimination. Although the Agency’s analysis only included a determination on whether Complainant had established a prima facie case for discrimination, our review of the record reflects that the Agency nevertheless articulated legitimate, non-discriminatory reasons for appointing Complainant the to the GNT position with a June 25, 2017 retroactive effective date. The Human Resources Assistant (“HR Assistant”) was the responsible management official who approved Complainant’s GNT pay action. The HR Assistant explained that Complainant’s situation was “complicated” because he was hired by the Agency as a Licensed Practical Nurse (“LPN”). However, South Carolina state law, SC Code of Laws, Chapter 33, Section 40-33-33, prevented Complainant from holding a valid LPN license and a valid RN license simultaneously. Additionally, the HR Assistant explained that Complainant was not scheduled to begin transition practice classes until July 9, 2017, which was approximately two weeks after he had received his RN license in late June 2017. Therefore, the Agency appointed Complainant to the GNT position so that Complainant could receive payment during the two-week period before his Transition to Practice Program (“TPP”) began without incurring a break in service. The Human Resources Specialist (“HR Specialist”) further explained that because of the state law preventing individuals from holding an LPN license and a RN license at the same time, Nursing Services instituted the TPP program that allows nursing program graduates to take the Nursing Boards and receive their RN license after graduation but before the start of the program. The TPP program begins in July and February of each year which coincides with May and December graduation cycle for nursing degree graduates. In this case, Complainant was scheduled to begin the TPP program on July 9, 2017, approximately, two weeks after Complainant received his RN license on June 30, 2017. 2019001842 4 The HR Specialist explained that once Complainant received his RN license, his LPN became void and Complainant would have had to leave the Agency because he would have had an inactive LPN license. In an effort to avoid any break in service from the Agency, the HR Specialist explained that Complainant was appointed to the GNT program, effective June 25, 2017 so that Complainant could continue to be paid by the Agency up until he started the TPP program. The EEO Program Manager also confirmed that previously, before the TPP program, Agency LPNs would lose their jobs once they obtained their RN license because they could only hold one license at a time and they would not have at least one year working as an RN as required for employment at the medical center. A copy of Complainant’s SF-50 indicates that, effective June 25, 2017, he was given a temporary appointment because he was selected to participate in the TPP program. 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 disability or reprisal for prior protected EEO activity. 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 (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the 2019001842 5 Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2019001842 6 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 July 29, 2020 Date