Jaunita W.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 17, 2020

2020002071 (E.E.O.C. Sep. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jaunita W.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002071 Hearing No. 480-2019-00531X Agency No. 200P-0691-2018106076 DECISION On January 4, 2020, 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 5, 2019, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 was an applicant for the position Staff Nurse, VN-0610, Level 3 Step 12 at the Agency’s facility in Los Angeles, California. On October 1, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of age (56) and in reprisal for protected EEO activity (unspecified). The formal complaint is in essence comprised of two claims. Claim 1 addresses Agency actions in efforts to process Complainant’s hire. Claim 2 addresses the rescission of a job offer. They are identified in the following fashion: 1. From March 6, 2018 to June 19, 2018 the following occurred: 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. 2020002071 2 -the Agency confiscated Complainant’s Kaplan Transcript and Complainant was forced to register with Purdue University to obtain a new transcript; -the Agency cancelled Complainant’s appointment for a physical alleging that Complainant had refused the job offer; -an Agency security team member sent Complainant duplicate applications that were unnecessary and delayed her onboarding process; -the Agency required Complainant to wait for a fingerprint appointment when walk-in visits were available; -the Agency advised Complainant to complete a second set of fingerprints; -the Agency failed to provide Complainant with the proper paperwork for fingerprinting; -Complainant had to call the nursing office to receive special security numbers; -the Agency instructed Complainant to provide information within two days but provided her access to the database two days later; -an Agency official told Complainant to limit her work history and only list registered nurse experience on her resume; -Agency human resource officials refused to intervene or take action when Complainant informed them of issues she was having; -Complainant experienced poor customer service when submitting her security background information; -Complainant received a job offer postdated July 27, 2018; -Complainant was directed to open an email attachment containing notice that the staff nursing job was rescinded; -the Agency sent Complainant an inappropriate email scolding her about issues with her resume, the onboarding process and her failure to disclose prior Agency employment; and 2. On August 23, 2018, the Agency notified Complainant that her tentative offer of employment as a Staff Nurse, VN-0610-1, Level 3 Step 12 was rescinded. 2020002071 3 Following an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 29, 2019, motion for a decision without a hearing and issued a decision without a hearing on December 5, 2019. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC's decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party's evidence and must draw justifiable inferences in the non-moving party's favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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 must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Disparate Treatment Generally, claims of disparate treatment such as this are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd. 545 F.2d 222 (1st Cir. 1976). For a complainant to prevail, he 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 2020002071 4 Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts to the complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its actions was a pretext for discrimination. At all times, the complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, U.S. 502, 519 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983). 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). Complainant alleges in the instant matter that the Agency discriminatorily rescinded an offer of employment, in claim 2, following its attempts to process her hire through the matters identified in claim 1. Here, our independent review of the evidence of record supports the AJ’s conclusion that Complainant failed to raise a genuine issue of material fact as to whether the Agency’s articulated legitimate, non-discriminatory reasons were pretext. With respect to Complainant’s claim that the Agency rescinded its offer of employment for the position of Staff Nurse, VN-0610-1, Level 3 Step 12, the Agency established that Complainant’s hiring process had taken an unreasonable amount of time during which there were issues with Complainant’s candor, timeliness and availability. The Agency determined therefore, that the vacant position could no longer be held open for an applicant who lacked the commitment to the hiring process and potentially the delivery of nursing care. Harassment Complainant further alleges that she was harassed and subjected to discrimination by several Agency actions as identified above. In essence, Complainant contends that the Agency subjected her to discriminatory harassment when it engaged in conduct that interfered with her ability to accept the staff nurse position. Complainant further alleges that the Agency is solely responsible for her failure to complete the onboarding process. However, the AJ found that Complainant struggled at nearly every portion of the hiring process. 2020002071 5 Specifically, the record indicates inter alia, that Complainant could not properly submit her security credential information into the required database, she incorrectly identified the Agency as a former employer, thereby creating an unnecessary investigation into her eligibility for rehire, she allowed her first set of fingerprints to expire, and she did not possess the proper paperwork for her follow-up appointment. Moreover, the record discloses that she compounded the delay in the Agency onboarding process when she twice requested a postponement to her start date. The Agency denies the that incidents of harassment occurred as alleged by Complainant or, as indicated in the record, offer legitimate explanations for its actions. To prove her claim of harassment, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected EEO activity. Only if Complainant establishes both of those elements - hostility and unlawful motive - will the question of Agency liability present itself. Upon review, we find that the AJ correctly determined that Complainant failed to identify any The record establishes that the instant complaint is the only protected EEO activity Complainant has engaged in. Here, Complainant’s claim of harassment is precluded based on our findings that the AJ correctly determined that Complainant failed to produce evidence that any of the disputed actions taken by the Agency were motivated by retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the AJ’s decision without a hearing finding no discrimination. 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 2020002071 6 (Aug. 5, 2015). All requests and arguments must be submitted to the 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. 2020002071 7 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 September 17, 2020 Date