[Redacted], Catherina B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionJan 31, 2023Appeal No. 2022002412 (E.E.O.C. Jan. 31, 2023) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Catherina B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022002412 Hearing No. 530-2020-00401X Agency No. 2004-0581-2018105713 DECISION On March 30, 2022, 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 February 24, 2022 final order concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Supervisory Nurse, Grade VN-3, Step 5, at the Agency’s Herschel “Woody” Williams medical facility in Huntington, West Virginia. On August 23, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (60) and in reprisal for prior EEO-protected 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. 2 2022002412 a. On August 9, 2018, the Agency did not select Complainant for the position of the 5 South Nurse Manager, VN-3, under vacancy announcement number 18-087-10221213-HUN38-CN; b. On August 24, 2018, the Agency did not select Complainant for the position of Intensive Care Unit (ICU) Nurse Manager, VN-3, under vacancy announcement number 18-112-10250310-HUN38- CM; and c. On January 10, 2019, Complainant's Supervisor gave her a verbal warning when her supervisor learned that Complainant had occasionally placed notes in AcuStaf indicating that a staff member had “called-in”? After 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, the AJ issued a decision by summary judgment finding no discrimination. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant argues that she was clearly the superior candidate for the vacancies for which she had applied because she had experience as an acting Nurse Manager within the facility. Regarding Claim a., Complainant states that the Agency’s interview scores were fabricated so that management could promote its favorite candidate. Complainant disputes the Agency’s position that members on the interview panel were Complainant maintains that the selectee was later proven unfit for the Nurse Manager position and was transferred. When Complainant was not given an interview, the selecting official responded, in essence, that he was unaware of Complainant’s interest in the ICU Nurse Manager vacancy. Regarding claim c., Complainant asserts that she was the only employee to receive a verbal warning for using the AruStaf scheduling system. Complainant further argues that the notes she entered were appropriate because only supervisors and managers could read those inputs, as opposed to others. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. 3 2022002412 The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. 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. 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. Therefore, we find that the AJ properly issued a decision here by summary judgment. Non-Selections We considered Complainant’s non-selection Claims a. and b. in accordance with the U.S. Supreme Court’s three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant had to establish a prima facie case by demonstrating she was subjected to adverse employment action under circumstances that would support his inferences of discrimination. See Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The second burden was on the Agency to articulate legitimate and nondiscriminatory reasons for its actions at issue. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). If the Agency articulated a legitimate, nondiscriminatory reason for its actions, then our inquiry proceeds to the third step- whether Complainant has shown by a preponderance of evidence that the Agency’s reasons were pretexts to mask discriminatory motivations. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). For managerial vacancies, such as the Nurse Manager positions at issue in this case, Agencies have broad discretion when selecting among competitive candidates. See Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). In nonselection cases, pretext may be found where the complainant's qualifications are demonstrably superior to the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, Complainant established her prima facie case on the raised bases. Although we reviewed the present non-selection decisions in the most favorable light for Complainant, we concur with the AJ, in that the Agency has articulated nondiscriminatory reasons for not selecting Complainant. Regarding the first non-selection claim concerning the 5 South Nurse Manager, the record revealed that the same three panel members evaluated the seven qualified candidates (including Complainant) who were interviewed. 4 2022002412 Whereas the eventual selectee was scored 68, which was the highest score for the interview, Complainant came in sixth by scoring 50 on the interview. Moreover, although Complainant had two masters-level degrees and had served as acting 5 South Nurse Manager, the selectee was studying toward one master’s degree and was currently in a similar Nurse Manager position for a similar hospital unit. Consequently, we concur with the AJ that Complainant did not prove with preponderant evidence that she was a plainly superior candidate. Regarding the next claim, challenging not selecting of Complainant for the ICU Nurse Manager Vacancy, the Agency explained that the selectee scored higher than Complainant in terms of qualifications. It was noted that Complainant was among sixteen candidates considered for the ICU Nurse Manager position. Apparently, only the selectee was interviewed and selected because he scored plainly superior when his qualifications were compared to Complainant and the other fourteen applicants. Whereas Complainant had been an acting Nurse Manager while in her current Supervisory Nurse position, the selectee had been a Nurse Manager in other Agency hospital’s ICUs for approximately a decade. Furthermore, the selectee for he ICU Nurse Manager scored highest at 72 based on qualifications as stated in his application. Complainant’s application score 54 placed her in third. Consequently, we find the Agency has proffered legitimate reasons for its selection decision with respect to the ICU Nurse vacancy. For the 5 South Nurse Manager position, Complainant believed that she would have been a better selection because the selectee ultimately left the position earlier than expected. For the ICU Nurse Manager, Complainant stated that her supervisor had failed to inform the selection official about Complainant’s genuine interest in the position. Nevertheless, the pretext inquiry is not concerned with bad judgments, impeccability, dislikes, or mistakes. Marvin W. v. Dep't of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question was not whether the Agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Alda F. v. Dep't of Health and Human Servs., EEOC Appeal No. 0120182538 (Nov. 27, 2019). Finally, this Commission will not second-guess the business judgment of Agency officials regarding personnel decisions unless there was a demonstrably discriminatory motive. Camden v. Dep't of Justice, EEOC Appeal No. 0120093506 (July 27, 2012) request for recon. denied, EEOC Request No. 0520120603 (Jan. 31. 2013). Verbal Warning We considered Complainant’s claim about receiving a verbal warning not to enter additional information into the notes section in the AcuStaf scheduling program in the context of harassment. In order to prevail on the harassment claim, Complainant must prove that she was verbally warned about entering notes into the because of her race or because of her prior EEO- activity. Beyond such motive, Complainant must show that the harassing conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be abusive. 5 2022002412 Because Complainant has also alleged reprisal, she must prove that the Agency’s actions were harmful to the point that they could dissuade a reasonable person from making or supporting a charge of discrimination. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); also EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) and n. 137 (Aug. 25, 2016). Only if Complainant satisfies her burden of proof with respect to both elements, abusive hostility, and discriminatory motive, can the Agency be held liable for liability for discriminatory or retaliatory harassment. Harassment should be evaluated from the objective viewpoint of a reasonable person in a complainant’s circumstances. Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Complainant must bear in mind, that anti-discrimination statutes were not general civility codes designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); (personality conflicts, general workplace disputes, trivial slights and petty annoyances between coworkers and a complainant do not constitute harassment). Instead, EEO laws prohibit discriminatory conduct so objectively offensive that it alters the work environment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Complainant found her supervisor’s verbal warning against entering notes into the AcuStaf system inappropriate. Even so, we find that the alleged conduct was not of sufficient severity or pervasiveness to rise to the level of an EEO violation. Rather, what Complainant has described in Claim c. was a brief and informal supervisory criticism, and without the severity or pervasiveness necessary to establish a hostile work environment in violation of the anti- discrimination statutes. This Commission has long held that routine admonishments or do not create a discriminatorily hostile work environment, but instead are common indignities of regular employment. Les B. v. Dep't of State, EEOC Appeal No. 2021002217 (June 2, 2022). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order implementing the AJ’s summary judgment finding of no discrimination or unlawful retaliation as alleged. 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. 6 2022002412 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. 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. 7 2022002412 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 January 31, 2023 Date Copy with citationCopy as parenthetical citation