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

Equal Employment Opportunity Commission

Nov 28, 2022

Appeal No. 2022001312 (E.E.O.C. Nov. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sanjuanita A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022001312 Hearing No. 550-2020-00175X Agency No. 200P-0612-2019103312 DECISION On January 11, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per 29 C.F.R. § 1614.403(a), from a December 15, 2021 final Agency 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue Complainant was employed by the Agency as a Social Worker, GS- 0185-11 at the Northern California Veterans Affairs Healthcare System facility, Social Work Service, in Martinez, California. On June 10, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on race/national origin (South Asian/India), color (Brown), and reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act when, on April 24, 2019, she learned she was not selected to be a Senior Social Worker (Transition of Care), GS-0185-12, in her facility’s Primary Care Service, under vacancy announcement CBEC-10360819-19-AP. 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. 2022001312 2 The Agency investigated the complaint, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Over her objection, the AJ granted the Agency’s motion for summary judgment. The AJ found no discrimination was established. By incorporation into her decision of the Agency’s July 13, 2020 motion for summary judgment and its August 26, 2020 sur-reply to Complainant’s opposition motion, the AJ found, sometimes by reference, as follows. Transition of Care was a new and first of its kind high visibility program with an interdisciplinary team comprised of a nurse, senior social worker, and pharmacist. Its mission was to decrease return visits to emergency departments and hospital readmissions by coordinating care of veterans with both complex health and psychosocial issues transitioning from acute care hospitalization in non- Veterans Affairs facilities to outpatient care and managing care within and outside the Veterans Affairs health care system. The job required coordinating with social service systems outside Veterans Affairs. Eight applicants, including Complainant, were deemed eligible for the Senior Social Work position. The selection process included an interview panel composed of three Transition of Care members - a pharmacist (“Panel Pharmacist”, Caucasian, White, American), the outgoing senior social worker (“panel social worker”, White), and the social work supervisor, who was the selecting official (White). Panel members each had their own scoring sheets for all candidate resumes. Their scores on each resume matched. Each panel member’s score for each resume ranged from a low of two to a high of eight. The selectee’s resume was rated seven by every panel member, and Complainant’s eight. The scores were added for a sum of 21 for Complainant, and 24 for the selectee (White). All the candidates were interviewed by telephone and asked the same seven questions, which the panel members independently scored. Each panel member’s score for each candidate interview ranged from a low of 15 to a high of 33. Each panel member’s interview score for Complainant ranged from 15 to 20, and for the selectee 29 - 33, for a sum of 52 for Complainant and 95 for the selectee. A candidate’s overall score was the sum of their resume and interview scores. Complainant’s overall score was 76, and the selectee’s 116. Candidates were ranked by their scores. The selectee was ranked first, and Complainant seventh.2 The candidate with the highest overall score was viewed by the selecting official as most qualified and was selected. Panel Pharmacist stated Complainant’s responses to interview questions did not show she understood the job, and the selecting official variously described Complainant’s responses as not detailed, not responsive, and basic. Panel Pharmacist stated she asked Complainant for an example of collaborating with an external interdisciplinary team for patient care and she did not give one, which was significant because the job involves working with people, facilities, and organizations outside Veterans Affairs. 2 We provide more detail on resume and interview scores than in the AJ’s decision. 2022001312 3 She stated that in response to another question Complainant gave a general example (on arranging for hospice care) which did not demonstrate knowledge of dealing with complex end of life issues like arranging for dialysis or care goals for terminal patients. This was corroborated by Panel Pharmacist interview notes. The selecting official stated that the selectee gave detailed examples of complicated patient cases, reflecting experience with both inpatient and outpatient veterans, showed she understood the purpose of the Transition of Care program, and had a higher level of applicable expertise than Complainant. The selecting official added that because this was a new program, data collection was important to assess what is working and what needs improvement, and the selectee shared in the interview that she had a data collection background. Panel Pharmacist stated that the selectee demonstrated in the interview that by working in the Veterans Health Care System discharge placement center in San Francisco, she gained relevant experience getting patients what they needed upon discharge, demonstrated detailed knowledge of Veterans Affairs and community resources, and understood the need to expand the network with the community. This was corroborated by Panel Pharmacist interview notes. For example, her notes indicate that in response to a question, the selectee gave an example of a patient who was in acute care for 376 days with complex health problems and difficult to place (insulin dependent, wheelchair bound, some paranoia, verbally loud, limited income). She found this veteran an off-site spot in a private rehabilitation center by consulting the hospital team and nurses daily, building a relationship with the veteran, and getting the private rehabilitation program to come out to meet the veteran. The AJ found that management chose the selectee over Complainant because in its judgment she was the best qualified candidate and found no discrimination. The Agency then issued a final order adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS 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). This regulation mirrors the summary judgment procedure in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has ruled that summary judgment is proper when a court determines, using the substantive legal and evidentiary standards that apply to the case, that there is 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 job is not to weigh the evidence. Its job is to determine if there are genuine issues for trial. Id. at 249. The evidence of the party who did not request summary must be believed and all justifiable inferences drawn in their 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 party who did not request summary judgment. 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, making a decision without holding a hearing is improper. 2022001312 4 After reviewing the record, we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. Record and due process defects, request for sanctions On appeal, via counsel, Complainant argues that the Agency did not submit most of the hearing record to the Commission. She argues the appropriate sanctions for this are remanding her complaint to an AJ for a hearing and attorney fees and costs for the entire hearing process. One day after Complainant submitted her appeal brief, the Agency uploaded the missing hearing documents to the appellate side of the Commission’s information management system via FedSEP, giving the Commission’s appellate decision-making function access to them. Also, prior to Complainant’s appeal, most of these documents were already on hearings side of EEOC’s management information system, having been uploaded by the AJ, the Agency via FedSEP, and Complainant via EEOC’s Public Portal. This is equally accessible to the Commission’s appellate decision-making function. Accordingly, no sanction is warranted. On appeal, Complainant also argues that the Agency’s motion for summary judgment did not address the non-selection in this case, and its sur-reply brief was untimely filed. She argues that accordingly, the AJ’s decision is based on an incorporated summary judgment motion which did not address the non-selection claim in this case and on the Agency’s untimely sur-reply. Complainant’s argument is factually incorrect. The Agency’s motion for summary judgment exclusively addresses Complainant’s non-selection under vacancy announcement CBEC- 10360819-19-AP in detail, with citations to the report of investigation and to declarations and exhibits submitted with the motion. Also, the record shows that by email to Complainant’s prior attorney on August 12, 2020, which was copied to the Agency, the AJ granted Complainant’s second unopposed motion to extend deadlines, including for the Agency’s sur-reply to August 31, 2020. The sur-reply was timely filed on August 26, 2020. Alleged evidence of pretext creating genuine issues of material fact that warrants a hearing Complainant argues that the selectee had no skilled nursing facility (SNF) subacute social work experience, a requirement for the position. All three panel members gave Complainant a rating of zero on her resume for this rating factor. But Complainant does not either cite to anything showing that this it was a position requirement, or is it listed as so in the vacancy announcement or position description. Moreover, prior to the panel scoring resumes and interviews, Human Resources determined the selectee was qualified for the position. Complainant submits no evidence this was incorrect or based on discrimination. Complainant argues that the scores for resumes were given far less weight than the subjective interview scores. The highest score a panel member could give for the resume was 11, and 35 for the interview. 2022001312 5 In the absence of any evidence of discrimination, we find that these relative weights were within the discretion of the Agency. Also, since Complainant’s and the selectee’s resume scores were close, we fail to see how the weight given to the resume versus the interview score would have made a difference. Complainant contends that her qualifications were plainly superior to those of the selectee. She argues that she had more than 20 years of experience as a licensed social worker, far more than the selectee (who had more than four), and nine of them were providing acute and sub-acute social work expertise. She argues the selectee had no acute social work expertise. This is incorrect. The selectee’s resume shows that for close to four years she was a social worker in acute care settings. In reply, the Agency argues Complainant does not demonstrate why she was a plainly superior candidate. We agree. Absent discrimination, employers have discretion to choose who they believe is the best qualified candidate. Complainant’s qualifications are not such that her not being chosen is evidence of pretext. Complainant argues that the selection history of the selecting official points to discrimination. Based on the numbers, we are not persuaded. Complainant argues that the selecting official attributes her choosing the selectee, a white female, to the fact that the “social work field has more white females than any other race or gender, so there is a statistically higher chance of having white female applicants and thus white female selectees”, which demonstrates bias. We find this to be an incorrect characterization of the selecting official’s testimony. The selecting official did not attribute choosing the selectee to her being a white female. Rather, she indicated that more white females apply for social worker jobs than any other protected group, so there is a statistically higher chance of having more white female selectees. Complainant filed a prior EEO complaint concerning not being selected for a different position. She argues that the selecting official in the case before us admitted to actively engaging in a discussion with an identified responsible management official about this prior EEO complaint, which demonstrates retaliation. Complainant mischaracterizes the selecting official’s statement. In response to the EEO investigator’s question on whether she was aware of Complainant’s prior EEO activity, and if so when and how she learned, the selecting official said, “When another social work supervisor told me she had filed an EEO complaint against him after he didn't hire her for a position.” Complainant’s argument is not persuasive. The selecting official did not state she asked about Complainant’s EEO activity. And there is no indication this happened in connection with the non-selection before us. In sum, we find no error in the AJ’s conclusion that Complainant did not prove discrimination. CONCLUSION The Agency’s final order is AFFIRMED. 2022001312 6 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. 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). 2022001312 7 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 November 28, 2022 Date