[Redacted], Chantelle M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 25, 2022

Appeal No. 2021003983 (E.E.O.C. Apr. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chantelle M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021003983 Hearing No. 430-2021-00089X Agency No. 2004-0565-2019104505 DECISION On July 6, 2021, 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 July 14, 2021, 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. 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 a Registered Nurse Care Manager at the Agency’s Fayetteville Medical Center (VAMC) in Fayetteville, North Carolina. On October 16, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when, on May 29, 2019, she was not selected for the position of Maternity Care Nurse Navigator. 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. 2021003983 2 Complainant reported that she was granted an interview on May 22, 2019, with a panel that included three individuals (Selecting Official 1, Selecting Official 2, and Selecting Official 3). Report of Investigation (ROI) at 64. In addition to the three interviewers, there was a fourth selecting official (Selecting Official 4) responsible for uploading the candidates scores following the interviews. Id. at 79. On May 29, 2019, she reported receiving the notification from USAjobs, the government hiring website, that she had not been selected. Id. at 65. Complainant stated that based on the job requirements listed in the announcement for the position, she exceeded the basic preferred requirements. She noted that she had a master’s degree in Nursing Education, certifications in Lactation Counseling and Ambulatory Care, as well as six years of experience in Maternal Care, and one and a half years' experience in Ambulatory Care Coordination. Based on this experience education, and certification, she argued that she would have been the more suitable candidate. ROI at 65. In order to determine why she had not been selected, Complainant emailed one of the selecting officials, Selecting Official 4. After several days, Selecting Official 4, responded and stated that Complainant's non-selection was due to her interview score which was a 32 out of 90. ROI at 67. Complainant also received her interview questions. She provided that after correlating her answers with the questions, her overall score provided by Selecting Official 4 was not correct. Id. Selecting Official 4 reported that there were nine candidates, with five selected for interview, and a total of four interviews completed. All interviewees were asked the same questions. Candidates were rated based on experience and a performance-based questionnaire. The selected candidate (Selectee) was a female of an undetermined race. ROI at 81. Selecting Official 4 explained that the Selectee was chosen based on her recent experience in maternity care and labor and delivery. In addition, Selectee scored the highest on the questionnaire. In contrast, Selecting Official 4 explained that Complainant had insufficient maternity care and labor and delivery experience compared to the Selectee and received a low score on the performance interview questionnaire. ROI at 82-3. 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. When the Complainant did not object, the AJ assigned to the case granted the Agency’s May 24, 2021, motion for a decision without a hearing and issued a decision without a hearing on June 22, 2021. The AJ found that there were no genuine disputes of material fact to be resolved at hearing, and the record evidence did not support a finding of discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2021003983 3 CONTENTIONS ON APPEAL On appeal, Complainant contends that her case was decided against her due to her failure to provide information related to her case. She further contends that she failed to provide this information due to a misunderstanding regarding a due date. In light of this misunderstanding, Complainant requests reconsideration and states that she has substantial evidence showing that she was discriminated against. In response, the Agency argues that the evidence demonstrates that the Agency utilized a non- discriminatory selection process where all applicants were asked the same questions, graded on the same scale, and the candidate was selected based on her responses. The Agency reiterates that Complainant scored a 32 out of 90 points, and Selectee had the highest score. Under the circumstances, the Agency contends that Complainant failed to establish a prima facie case. ANALYSIS AND FINDINGS Decision Without a Hearing In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). We determine whether the AJ appropriately issued the decision without a hearing. 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 2021003983 4 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has not presented arguments regarding the evidence of record. Rather, Complainant argues that she should be granted reconsideration due to her confusion over discover request deadlines. The record contains the Case Management Order Memorializing Initial Teleconference dated March 10, 2021. The Case Management Order stated that the parties were granted a 45-day discovery period from March 24, 2021, through May 10, 2021. The Order made clear that if a party wished to engage in discovery, the party was required to serve discovery requests on or before March 24, 2021. The Order further stated that if a party failed to service discovery requests by this deadline, the party waived the right to pursue or conduct discovery. Complainant did not serve her discovery requests on the Agency by March 24, 2021. Complainant attempted to email her written discovery requests on April 4, 2021. In a letter to the AJ, Complainant explained that she misunderstood, and was under the assumption, that discovery requests were due by April 14, 2021. See Letter to Judge (May 5, 2021). We note that an AJ has broad discretion in the conduct of a hearing, including matters such as issuing discovery orders, scheduling, and witness selection. See 29 C.F.R. § 1614.109(e). In the present case, Complainant has not presented a persuasive reason for her failure to submit her discovery requests within the time limits. The limits identified in the Case Management Order appear clear and fair. While sympathetic, we find that Complainant has failed to present evidence supporting a reason for her failure to timely submit her discovery requests. Furthermore, Complainant has not shown that any discovery requests would have provided any material facts in dispute. As such, we conclude that the AJ properly issued a decision without a hearing. Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially 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, 441 U.S. 2021003983 5 at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248. 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based his protected class, the Agency articulated legitimate. nondiscriminatory reasons for Complainant's non-selection. In this regard, Selecting Official 4 explained that the Selectee was chosen based on her recent experience in maternity care and labor and delivery and scoring the highest on the questionnaire. In contrast, the Selecting Official explained that Complainant had insufficient maternity care and labor and delivery experience compared to the Selectee and received a low score on the performance interview questionnaire. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In non-selection cases such as failure to hire or to promote, Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectees. Hung P. v. Dept. of Veterans Affs., EEOC Appeal No. 0120141721 (Dec. 3, 2015). We note that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Evtl. Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). They may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. Barney G. v. Dep't of Agric., EEOC Appeal No. 0120172111 (Nov. 29, 2018). They may even preselect a candidate as long as the preselection is not premised upon a prohibited basis. Michael R. v. Dep't of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). The Commission cannot second-guess such personnel decisions unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. Burdine, supra, 450 U.S. at 259. Complainant has not presented evidence nor arguments which indicate that the Agency’s reasons were pretextual. Complainant has not disputed the Selectee’s qualifications, nor shown that her qualifications were superior. While Complainant has argued that she was qualified for the position due to her accolades, Selecting Official 4 stated that the Selectee was more well suited for the position. Complainant has also argued that her score was not accurate. However, it is not clear that this is the case. There is no evidence that Complainant’s score was altered or lowered or that her answers were not adequately considered. Similarly, Complainant has not provided any evidence which would cast doubt on the legitimacy of the selection process. As noted above, Agencies have broad discretion to carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). While Complainant may have subjective disagreements with the Agency’s ultimate selection, she has not effectively shown any racial animus underlying her ultimate non-selection. We find that Complainant has failed to prove that the Agency's reasons for its actions were a pretext to mask discrimination based on her protected class or show that the Agency was motivated by discriminatory animus. 2021003983 6 Therefore, we find that the AJ’s decision, and the Agency’s adoption of that decision, to be proper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. 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. 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. 2021003983 7 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. 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 April 25, 2022 Date