Latricia P.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 24, 2017

0120151114 (E.E.O.C. May. 24, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Latricia P.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120151114

Hearing No. 470-2014-00060X

Agency No. 200H-0538-2012103027

DECISION

On February 4, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s January 6, 2015, final order concerning her equal employment opportunity (EEO)
complaint alleging 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. Our review is de novo.
For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Inpatient
Supervisor, GS-12, in the Pharmacy Department at the Agency’s VA Medical Center in
Chillicothe, Ohio.

On July 2, 2012, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the bases of her sex (female) and age (60) when:

1. On or about March 30, 2012, the Agency did not select her for the position of
Assistant Chief of Pharmacy Service.

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.
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2. On or about April 22, 2012, the Chief of Pharmacy Service demoted Complainant
from Inpatient Pharmacy Supervisor, GS-12, to Staff Pharmacist, GS-11.

3. Complainant was subjected to harassing conduct creating a hostile environment,
including but not limited to the actions in claims (1-2) and ongoing since January
2012, when the Chief of Pharmacy Service directed questions to Complainant for
fact-finding purposes.

At the conclusion of the 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 Motion for
Summary Judgment. The AJ issued a decision without a hearing on December 17, 2014.

With regard to claim (1), the AJ stated that a reorganization in the Pharmacy Department had
occurred and both the positions of Inpatient Supervisor and Outpatient Supervisor were
abolished, and one Assistant Chief of Pharmacy position was created. Complainant and the
former Outpatient Supervisor (male, 34 years of age) applied for and interviewed for the new
position. The three-person interview panel was composed of the Chief of Pharmacy Service
(male, 61 years of age), the Chief of Radiology (male, year of birth 1951), and the Chief of
Social Work (female, year of birth 1949). Each of the interviewers evaluated the former
Outpatient Supervisor higher than Complainant. The Chief of Pharmacy rated him higher 102
points to Complainant’s 85, the Chief of Radiology graded him ahead 108 points to 84, and the
Chief of Social Work scored him higher 95 points to 61. The former Outpatient Supervisor was
selected for the Assistant Chief of Pharmacy position and Complainant was placed as a Staff
Pharmacist, with pay retention. The AJ noted that prior to her pay retention expiring,
Complainant was re-graded to the GS-12 level and her change in position titles did not result in a
loss of pay.

The AJ stated that the Agency presented a legitimate, nondiscriminatory reason for
Complainant’s non-selection. The Agency explained that the selectee had a stronger interview
and scored higher in the panel interview than Complainant according to the evaluations made by
each panelist. The AJ noted that Complainant maintained her qualifications were superior to
those of the selectee, but that there is no evidence that the selectee’s qualifications were clearly
inferior to those of Complainant. The AJ further noted that Complainant claimed preselection
occurred because the selectee may have received an unfair advantage in his prior position or in
preparation for the interview. The AJ found that this argument was unsupported by evidence and
that discrimination based on sex or age was not suggested. The AJ found that Complainant
presented no evidence that showed that the Agency’s explanation for its selection was pretext for
discriminatory motivation.

With respect to Complainant’s demotion to a Staff Pharmacist position, the AJ pointed out that it
is undisputed that this was due to the reorganization of the Pharmacist Department, and the
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demotion was an automatic consequence of her not being selected for the Assistant Chief of
Pharmacy position. The AJ found no evidence that Complainant’s age or sex was a factor in her
demotion.

As for Complainant’s hostile work environment claim, the AJ observed that the claim consisted
of the non-selection, demotion, and the Chief of Pharmacy’s questions of Complainant for fact-
finding purposes. However, the AJ noted that Complainant did not identify the questions that
were asked. The AJ stated that Complainant argued that the Chief of Pharmacy and the Assistant
Chief of Pharmacy became discourteous, dismissive, hostile, and very unprofessional toward her.
Nonetheless, the AJ found that this claim fell short of establishing that such conduct was based
on Complainant’s age or sex; that it was severe or pervasive; that it had either the purpose or
effect of interfering with her work performance; or that it created an intimidating, hostile, or
offensive work environment.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that it subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Chief of Pharmacy was biased against older female
employees and that he preselected the selectee for the Assistant Chief of Pharmacy position.
Complainant maintains that the Chief of Pharmacy sought to diminish her chances of receiving
the position by denying her needed resources, assigning her more work, keeping the Outpatient
Supervisor informed of changes but not her, and creating a wrongful reprimand for her.
Complainant claims that the EEO Investigator failed to interview all of the witnesses she
suggested. Subsequent to her non-selection for the Assistant Chief of Pharmacy position,
Complainant states that in May 2013, the selectee was on a detail from the position and the Chief
of Pharmacy chose a male candidate with less seniority than her to serve as Acting Assistant
Chief of Pharmacy. According to Complainant, the Chief of Pharmacy talked to her about
retirement and she informed him that she was not planning to retire. Complainant states that she
contacted the Union and the Chief of Pharmacy responded by stating that he would function as
the Acting Assistant Chief of Pharmacy. Complainant maintains that this was the only way in
which the Chief of Pharmacy could avoid selecting her as the Acting Assistant Chief and is
demonstrative of his bias against older females.

In response, the Agency asserts as to Complainant’s claim concerning the EEO Investigator that
since Complainant requested a hearing, she had the opportunity to remedy any deficiency in the
investigation through discovery. With respect to Complainant’s allegation of favoritism, the
Agency states that this argument was considered by the AJ and Complainant has provided no
evidence that the alleged incidents occurred as she describes them. With regard to
Complainant’s claim that the Chief of Pharmacy was biased against older females, the Agency
notes that the incidents cited by Complainant occurred in May 2013, more than a year after the
most recent incident at issue in this complaint.

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ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

With respect to Complainant’s non-selection for the Assistant Chief of Pharmacy position and
her demotion to a Staff Pharmacist position, we shall assume arguendo that Complainant set
forth a prima facie case of sex and age discrimination. The Agency stated that her non-selection
was based on an interview process where each of the three panelists scored the selectee ahead of
Complainant. According to the Chief of Pharmacy, the selectee explained his experience better
than Complainant did, and it was believed he would be better prepared as Assistant Chief. The
Chief of Pharmacy stated that the panel thought that the selectee would do a better job based on
how he dealt with customers, what his plans were as the Assistant Chief, and because of his
leadership characteristics.

The Chief of Social Work stated that the contrast between the selectee and Complainant was
striking. She noted that Complainant did not stay abreast of health care organizational needs and
systems issues, system redesign, and process improvement. The Chief of Social Work explained
that the selectee was clearly able to articulate process improvement, provide concrete specifics in
relationship to the answers, and had an understanding where the organization was going.2 We
find that the Agency has articulated legitimate, nondiscriminatory reasons for its selection
decision.

Complainant attempts to establish pretext by arguing that her qualifications were superior to
those of the selectee. Complainant states that for two years she handled both Inpatient and
Outpatient supervisory duties. Complainant asserts that she has a Master’s Degree in Business
Administration and that she majored in Hospital Administration and Industrial Relations.
Complainant states that she has worked in several Agency facilities and that she works well with

2 The EEO Investigator attempted to obtain testimony from the Chief of Radiology, but he did
not respond to the Investigator’s letter.
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others. Additionally, Complainant states that she had almost 42 different assignments and
memberships on various committees. Complainant states that she believes the selectee had a
Pharmacy Degree and he did not work as the Outpatient Supervisor for very long.

Complainant also maintains that the selectee was preselected and that the Chief of Pharmacy was
biased against older females. According to Complainant, the selectee received more information
about the structure of the interview than she did, and may have been coached for the interview.
Complainant argues that the Chief of Pharmacy exhibited an attitude that women are for working
and not for leading. Complainant points to his handling of the Acting Assistant Chief selection
in May 2013 as an example of his favoritism toward male employees in leadership positions.

Upon review of the record, it is clear that Complainant’s qualifications for the Assistant Chief
position were impressive. However, it is also clear that the selectee did significantly better than
Complainant in the interview process. In particular, we take note that the Chief of Social Work,
a female panelist close to Complainant in age, decisively favored the selectee over Complainant.
We find that Complainant’s credentials were not so observably superior to those of the selectee
as to establish that her non-selection must have been due to discriminatory motivation. We also
discern no persuasive evidence that preselection was a factor in the selection process. We find
that Complainant has not established that the Agency’s explanation for her non-selection was
pretext intended to hide discriminatory motivation.

As for Complainant’s demotion, the Agency explained that this was due to the reorganization of
the Pharmacist Department that resulted in the abolishment of Complainant’s prior position, and
the demotion was an automatic consequence of her not being selected for the Assistant Chief of
Pharmacy position. We find that the Agency articulated a legitimate, nondiscriminatory reason
for Complainant’s demotion. We observe that Complainant reiterates the same arguments that
she utilized concerning the non-selection to challenge her demotion. The record establishes that
the demotion was a consequence of Complainant’s non-selection. Further, Complainant was
able to maintain her grade for two years pursuant to her reassignment to a Staff Pharmacist
position. We find no persuasive argument or evidence that the Agency’s explanation was pretext
intended to mask discriminatory motivation.

To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected classes; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working environment.” Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

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Therefore, in order to establish her harassment claim, Complainant must show 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 a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

The Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993), Complainant's claim of a hostile work environment must fail. See Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994).
Complainant has not presented any persuasive evidence that the events referenced in claim (3),
plus her non-selection in claim (1) and demotion in claim (2), were based on her age or sex.
Further, the incidents at issue have not been shown to be of sufficient severity or pervasiveness
to constitute harassment.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported by
the record.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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 Director, Office of Federal Operations, Equal Employment Opportunity
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Commission. The requests 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
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. Such requests do not alter
the
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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

May 24, 2017
Date