[Redacted], Luann L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 17, 2022

Appeal No. 2021004832 (E.E.O.C. Mar. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Luann L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004832 Hearing No. 520-2019-00578X Agency No. 200H-0689-2018106072 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 27, 2021 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. At the time of events giving rise to this complaint, Complainant was an applicant for the position of Staff Psychiatrist at the Agency’s Medical Center in Newington, Connecticut. Complainant applied for the Psychiatrist position at the Newington campus and was interviewed by the Chief of Mental Health (Chief). She was then referred to the then-current and former Mental Health Clinic Managers (M1 and M2).2 Following the second interview, she was referred to the Psychiatrist in charge of substance abuse for a third interview. She averred that after about 10 minutes into the third interview, M1 and M2 entered the room, discontinued that interview, and asked her to leave. She also stated that she sent a follow-up email to Chief, who did not respond, and that she was ultimately not offered the position. IR 45. 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 M2 retired from the Agency and did not participate in the investigation. 2021004832 2 On November 28, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of age (65) and reprisal (prior protected EEO activity) when, on August 6, 2018, Complainant’s interview for the position of Psychiatrist was abruptly terminated and she was not offered the position. Upon completing its investigation into the complaint, the Agency provided Complainant with a copy of the investigative report (IR) and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter subsequently issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency issued a final order fully implementing the AJ’s decision. This appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. (as revised, August 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). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory or retaliatory animus. Disparate Treatment To warrant a hearing on her disparate treatment claim, Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since Agency officials articulated legitimate and nondiscriminatory reasons for not selecting her. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). 2021004832 3 According to Chief and M1, the two selectees were already employed by and had extensive experience with the Agency. In addition, the three interviewers had expressed concerns about whether Complainant could handle a daily workload of eight to twelve patients per day after she told them that in her practice, she typically saw up to eight patients per week. IR 50-52, 58-61. To move forward with a hearing, Complainant must also raise a genuine issue of material fact as to whether the explanation put forward by the Agency officials is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (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). Questions of pretext can be raised by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare- Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). 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 Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Complainant maintained that she was eminently qualified for the position. IR 45. 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. M1 averred that Complainant was not considered the best fit for the job compared to the other candidates for the position who were transferring from other Agency medical centers, and consequently, had superior recent or current experience within the Agency system. M1 also reiterated her concerns about Complainant’s relatively light patient workload. IR 58-59. Beyond her own affidavit, Complainant has not presented any evidence that tends to undermine M1’s explanation. We therefore find that Complainant’s qualifications were not plainly superior to those of the selectees. Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). 2021004832 4 When asked why she believed that her age and previous EEO activity were factors in her nonselection, Complainant maintained that there was no legitimate reason for the interview to have been terminated and that vacancies continued to exist. IR 45. M1, however, denied that the third interview ended abruptly. Rather, due to staff availability, Complainant had met with an additional clinical psychiatrist outside of the interview process and as a result had an opportunity to learn more about the clinics and the psychiatrist’s role at those clinics. M1 averred that Complainant was given a tour of the facilities and the opportunity to ask questions. IR 58. Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor document which contradict or undercut M1’s version of events or which would cause us to question M1’s truthfulness as a witness. Ultimately, we agree with the AJ that Complainant has failed to establish the existence of a dispute in the evidentiary record sufficient to give rise to a genuine issue of material fact. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2021004832 5 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. 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. 2021004832 6 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 March 17, 2022 Date