Lilian C.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 19, 2020

2019004016 (E.E.O.C. Aug. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lilian C.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019004016 Agency No. 200H-0523-2018105412 DECISION On June 6, 2019, 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 May 2, 2019, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0647-10 Diagnostic Radiologic Technologist (CT) with an intermittent schedule at the Agency’s VA Boston Healthcare System, Jamaica Plain Campus, in Boston, Massachusetts. As an intermittent employee, Complainant was not entitled to a fixed schedule, a set number of hours to work, paid time off, or benefits. Complainant is female and was born in October 1966. From April 2016 through April 2018, the Assistant Chief Technologist (P1) was Complainant’s first-line supervisor. In April 2018, Complainant filed an EEO complaint, alleging that she was subjected to discrimination based on sex and age when, in January 2018, she was not selected for a permanent position, and P1 lied to 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. 2019004016 2 her about the existence of job openings in Radiology. After April 2018, P1 became the Radiology Administrator. In or around June 2018, Complainant applied for a full-time, permanent GS-0647-9 Diagnostic Radiologic Technologist (CT) position at the Jamaica Plain Campus that was advertised under vacancy announcement number CAZW-10238836-18-KNA. Complainant and two other candidates (C1 and C2) were found qualified for the position and referred to the selecting official, the Assistant Chief Technologist at the West Roxbury Campus (P2). P2 assembled a four-member panel to interview the three candidates, which consisted of P1, P2, a Lead CT Technologist (P3), and the Assistant Chief Technologist at the Jamaica Plain Campus (P4). According to P2, she was not originally planning to have P1 on the panel, but he stepped in when the Chief Technologist was unavailable to participate. P1, P2, P3, and P4 interviewed Complainant and C1 in-person on July 11 and 12, 2018. On July 13, 2018, P2, P3, and P4 interviewed C2 by phone. According to P1 and P2, P1 did not participate in C2’s interview because he was on planned leave that day. The panelists asked each candidate the same five questions and scored the candidate’s responses from 1 to 5. Because P1 did not participate in C2’s interview, P2 divided Complainant and C1’s scores by 100, the highest possible score for a four-panelist interview, and she divided C2’s score by 75, in order to rank the candidates based on the percentage of the total possible points they received. P1 gave Complainant 17 points, P2 gave her 18 points, P3 gave her 24 points, and P4 gave her 20 points, for a total of 79 out of 100 points, or 79%. P1 gave C1 24 points, P2 gave him 24.5 points, P3 gave him 23 points, and P4 gave him 20 points, for a total of 91.5 out of 100 points, or 91.5%. C2 received 60 points out of 75, or 80%. P2 selected C1 for the position. C1 is male and was born in May 1965. P2 stated that C1 was the best qualified candidate and performed the best of the three candidates during the interview. P2 averred that, during the interview, C1 highlighted his experience in the private sector and with the Agency and his ability to develop positive relationships and work well with colleagues. According to P2, during the interview, Complainant disparaged her coworkers instead of highlighting her own positive qualities when she answered the questions. P1 agreed with P2 that C1 was the most qualified candidate based on his experience. P4 stated that he thought Complainant and C1 were equally qualified for the position, and he added that he did not think Complainant’s sex, age, or prior protected activity were factors in her nonselection. According to P4, although Complainant and C1 were equally qualified, Complainant ended her interview on an unusual, sour note. P4 averred that instead of asking questions of the panel when given the opportunity at the end of the interview, Complainant concluded by pointing out a positive experience she had working with P2, P3, and himself. According to P4, Complainant said she had “nothing to say” about P1. Complainant stated that she did not expect P1 to be at the interview, so his presence caught her off guard. 2019004016 3 According to P3, Complainant was more qualified than C1 because the vacancy was at the Jamaica Plain Campus, where she was working at the time. At the time of his selection, C1 was working at the West Roxbury Campus and had no experience at the Jamaica Plain Campus. P3 stated that Complainant’s sex and age were not factors in her nonselection, but he added that he believed that her prior EEO complaint was a factor. P3 averred that P1 had previously told him that he would not be part of the interview panel for this selection because Complainant had filed an EEO complaint against him. P1 denied that Complainant’s prior protected activity influenced how he scored her interview performance. Complainant stated that she was much more qualified than C1 because she had more experience with CT scans and more seniority with the Agency. According to Complainant, C1 was new to the Agency and was still on a probationary period at the time of his selection. According to the record, C1 previously worked for the Agency from November 2008 to December 2016, one year as an X-Ray Technologist and seven years as a CT Technologist, before he relocated to Massachusetts and worked as a private sector CT Technologist. Because of the break in service, C1 began a new probationary period when he returned to the Agency and began working at the VA Boston Healthcare System as a Diagnostic Radiologic Technologist (CT) in January 2018. On November 2, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (born in October 1966), and in reprisal for prior protected EEO activity when, on July 19, 2018, she was not selected for the GS- 0647-9 Diagnostic Radiologic Technologist (CT) position advertised under vacancy announcement number CAZW-10238836-18-KNA. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2019004016 4 To prevail in a disparate treatment claim, 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has 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). In a selection case, a complainant can attempt to prove pretext by showing that her qualifications are “plainly superior” to those of the selectee. See Patterson v. Dep’t of the Treasury, EEOC Request No. 05950156 (May 9, 1996). Complainant alleged that she was subjected to discrimination based on sex, age, and reprisal when she was not selected for the position. The Agency’s legitimate, nondiscriminatory reasons for selecting C1 were that he was the most qualified candidate and that he performed the best during the interview. As evidence of pretext, Complainant contends that P1 remarked during the interview that Complainant was in college before he and P4 were born. P1 denied making this remark. However, even if P1 made this remark as alleged, C1 was one year older than Complainant. As further evidence of pretext, Complainant stated that she was significantly more qualified than C1, a probationary employee. Upon review, we find that C1 was a probationary employee because he had a break in service, but he had previously worked for the Agency for eight years. C1 and Complainant had similar experience and credentials, so we find that Complainant has not established pretext by demonstrating that her qualifications were plainly superior to those of C1. One of the panelists, P3, stated that Complainant was more qualified than C1, and he also stated that he believed that P1’s low score for Complainant was influenced by her prior EEO activity. While P3 awarded Complainant 24 points, he awarded C1 a similar score of 23 points, and P3 stated that Complainant was more qualified because she was working at the Jamaica Plain Campus at the time. We note that, even if P1’s scores were removed from the calculations, C1 still would have had a higher score of 67.5 points, compared to 62 points for Complainant. We find that Complainant has not established by the preponderance of the evidence in the record that the Agency’s proffered legitimate, nondiscriminatory reasons for not selecting her were a pretext designed to mask discrimination based on sex, age, and/or reprisal. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 2019004016 5 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 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. 2019004016 6 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 August 19, 2020 Date