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

Equal Employment Opportunity Commission

Mar 6, 2023

Appeal No. 2022002685 (E.E.O.C. Mar. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shondra S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022002685 Hearing No. 410-2020-00351X Agency No. 200I-0557-2019105244 DECISION On April 14, 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 March 15, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0622-06 Medical Supply Technician in the Sterile Processing Service (SPS) at the Agency’s Carl Vinson VA Medical Center facility in Dublin, Georgia. In June 2019, Complainant applied for a newly created GS-0622-07 Medical Supply Technician (Censitrac Coordinator) position. Censitrac is an electronic data system for monitoring quality assurance in the cleaning, decontamination, sterilization, processing, and distribution of medical instruments and medical equipment. Hearing Transcript (HT) at 9. Complainant, who is Caucasian and white, was not selected for the position. The selectee is African-American and Black. 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. 2022002685 2 The Chief Nurse of Acute Care was the selecting official for the Censitrac Coordinator position (“Selecting Official”). Based on a review of resumes, the Selecting Official invited the top three candidates for interviews with a three-member interview panel. Complainant received the highest resume score from the Selecting Official of 11 points, and the selectee received 8 points based on her resume. Report of Investigation (ROI) at 146. The Selecting Official asked the following individuals to serve on the interview panel: the Acting Assistant Supervisor for the SPS Department (Panelist-1), the Administrative Officer for Acute Care (Panelist-2), and the Assistant Nurse Manager for Urgent Care (Panelist-3). At the time of the selection process, Panelist-1 was Complainant’s second-level supervisor. ROI at 70. The panel asked the candidates the same six questions during the interview. The panelists all scored the selectee’s performance higher than Complainant’s. Panelist-1 and Panelist-2 stated that he knew that, based on their knowledge of her work, Complainant had more experience with Censitrac than the selectee. HT at 51-54, HT at 114-15. However, Panelist-1 averred that Complainant did not seem like she wanted to be at the interview and provided short answers, so the panelists had to repeat the questions to try to get Complainant to elaborate. HT at 68-72, 76- 77. In contrast, Panelist-1 stated that the selectee was enthusiastic, and her answers to the questions were detailed and thorough. HT at 71-74. According to Panelist-2, although she knew Complainant had knowledge about Censitrac, she scored her based on her interview responses, which were short and not very detailed. HT at 128, 133, 139-41. Panelist-2 stated that the selectee provided more detail. HT at 130-31. Panelist-3 testified that both Complainant and the selectee performed well during the interview, noting there was only a two-point difference between the score she gave Complainant and the score she gave the selectee. HT at 87-88. Panelist-3 stated that Complainant was very brief in her answers to the questions, whereas the selectee provided thorough answers with more examples than Complainant. HT at 100-04. Complainant received 67 points from the panel based on her interview, and the selectee received 79 points from the panel based on her interview. ROI at 146. Combined with their resume review scores, the selectee received an overall score of 87 points, whereas Complainant received an overall score of 78 points. ROI at 146. The Selecting Official believed that Complainant had more Censitrac knowledge than the selectee at the time of the selection, but she added that Complainant did not have significantly more Censitrac experience because the facility did not fully implement the Censitrac system until 2020, after the selection. HT at 152-54. The Selecting Official determined that both Complainant and the selectee had the necessary knowledge and experience for the position, and she selected the selectee based on her higher combined resume and interview score. HT at 157-59. On November 19, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian) and color (white) when, on July 12, 2019, she was not selected for the GS-0622-07 Medical Supply Technician (Censitrac Coordinator) position advertised under announcement no. CBBM-10817031-19-NM. 2022002685 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. The AJ held a hearing on January 25, 2022, and issued a decision on March 11, 2022. The AJ found that Complainant established a prima facie case of discrimination based on race and color. Complainant, who is Caucasian and white, was qualified but was not selected, and the selectee is African-American and Black. The AJ determined that the Agency’s legitimate, nondiscriminatory reason for not selecting Complainant is that she did not have the highest score after the resume review and the interview. The interview panelists unanimously agreed that the selectee was more enthusiastic during the interview and provided detailed, thorough answers to the questions, whereas Complainant appeared as though she did not want to be there and provided short, less detailed responses that required prodding from the panel. As evidence of pretext, Complainant argued that she had more experience than the selectee because she had performed the duties of the Censitrac Coordinator position for years before it was created, and she alleged that the Agency manipulated the selection process to favor subjective interview performance, noting that she scored higher on the objective resume review. However, the AJ determined that the Selecting Official and the panelists placed a great deal of weight upon the interview responses and that Complainant did not present any evidence that she performed better than the selectee in the interview. Complainant asserted that Panelist-1 preselected the selectee and that Complainant had a history of conflict with Panelist-1. The AJ noted that Complainant’s alleged history of conflict with Panelist-1 did not establish racial bias simply because Panelist-1 was of a different race and color than Complainant. Moreover, the AJ determined that Complainant failed to establish that the alleged preselection was based on discriminatory animus. Despite Complainant’s assertion that Panelist-1 was involved in the selection, the AJ found that there was no evidence that Panelist-1 made the selection decision. Finally, although Complainant testified at the hearing that the selectee was unable to effectively perform the duties after she started in the position, the AJ found that this was not relevant to determining whether the Selecting Official discriminated against Complainant when she selected the selectee based on the information available to her at the time of the selection. The AJ concluded that Complainant did not establish pretext and did not establish that she was subjected to discrimination based on race and color as alleged. 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. The instant appeal followed. On appeal, Complainant contends that the Agency failed to meet its burden of production of proffering a legitimate, nondiscriminatory reason because it amounts to a blanket denial of having engaged in discriminatory conduct. Assuming arguendo that the Agency provided a legitimate, nondiscriminatory reason, Complainant argues that she established pretext for discrimination. 2022002685 4 According to Complainant, the Agency’s explanation that the selectee provided better answers during her interview failed to consider Complainant’s extensive qualifications, the biased interview process, and credibility issues regarding the interview panelists and the Selecting Official. For example, Complainant notes that Panelist-2 described Complainant as the “go-to person” for Censitrac questions and stated that she recommended Complainant for the position because she was more qualified, while Panelist-3 stated that Complainant did well in her interview and that she recommended Complainant be hired. However, both Panelist-2 and Panelist-3 scored Complainant lower than the selectee for the interview, which Complainant answers is a clear inconsistency that demonstrates an inference of discrimination. Complainant also argues that there were deviations from procedure because the Selecting Official decided not to conduct a second round of interviews and because Panelist-2 testified that there was some confusion whether the Selecting Official or Panelist-1 made the selection for the vacancy. Complainant also contends that there were credibility issues regarding Selecting Official that further establish pretext. Complainant requests that the Commission reverse the final order, find that Complainant was subjected to discrimination based on race and color, and award appropriate relief. In response to Complainant’s appeal, the Agency contends that Complainant has not demonstrated that the AJ’s findings of fact were not supported by substantial evidence. The Agency asks that its final order be affirmed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). 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). 2022002685 5 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). The Selecting Official stated that she chose the selectee because she received the highest score from the resume review and the panel interview. The members of the interview panel all agreed that the selectee performed better than Complainant in the interview, contrasting the selectee’s thorough, detailed responses to the questions and the selectee’s enthusiastic attitude to Complainant’s shorter, less detailed responses and Complainant appearing as though she did not want to be at the interview. Although the Agency's burden of production is not onerous, it must provide a specific, clear, legitimate, and individualized explanation that provides an opportunity for Complainant to satisfy her ultimate burden of proof of pretext. Lorenzo v. Dep’t of Defense, EEOC Request No. 05950931 (Nov. 6, 1997). We agree with the AJ that the Agency articulated a legitimate, nondiscriminatory reason for selecting the selectee over Complainant. As evidence of pretext, Complainant contends that the Agency’s emphasis on interview performance overlooked her extensive qualifications for the Censitrac Coordinator position. However, regarding personnel actions by an agency, we have consistently recognized that an agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed, as here, by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Complainant has not established that the Agency’s emphasis on interview performance was based on discriminatory animus, nor has she provided any evidence contradicting the panelists’ assessment of her interview performance. We note that none of the six interview questions specifically address Censitrac experience. ROI at 134-35. On appeal, Complainant contends that the testimony of Panelist-2 and Panelist-3 was inconsistent with scoring Complainant’s interview lower than the selectee’s interview. Panelist-2 described Complainant as the “go-to person” when she had questions about Censitrac and testified that, if the selection were up to her, she would have chosen Complainant based on her experience. HT at 114-15, 134-35. However, this is not inconsistent with Panelist-2’s testimony that, when scoring the interview, it was strictly based on the responses Complainant provided during the interview, which were short and not very detailed. HT at 128, 133, 135. To the extent Complainant argues that Panelist-3 recommended that she be selected based on a notation on the interview scoring sheet that said “hire,” Panelist-3 made the same notation on the selectee’s interview scoring sheet and explained that she wrote “hire” if she thought the candidate met the qualifications for the position, whereas she would have written “do not hire” if she thought the candidate could not do the job at all. HT at 88, 103; ROI at 137, 143. 2022002685 6 Panelist-3 consistently stated that, although Complainant did well at the interview, the selectee performed better. HT at 100-04. As evidence of pretext, Complainant cites Panelist-2’s testimony that, although there had been some discussion of a second round of interviews if needed, additional interviews were not conducted after the panel interviews. HT at 116-17. However, there is no evidence in the record that a second round of interviews was required by policy. Moreover, the Selecting Official’s determination not to conduct a second round of interviews is not inconsistent with Panelist-2’s testimony that a determination would be made “to see if a second interview needed to be conducted or not.” HT at 116. Complainant correctly notes that Panelist-2’s testimony reflected some confusion over whether the Selecting Official made the selection for the vacancy in question. HT at 117, 124. However, the AJ determined that both the Selecting Official and the Panelist-1 were credible in their testimony that the Selecting Official was solely responsible for the selection decision. We see no basis not to accept the AJ’s credibility determination and find that the AJ’s conclusion that there was no evidence that Panelist-1 made the selection decision or influenced the outcome of the Selecting Official’s selection decision is supported by substantial evidence. Finally, Complainant challenges the credibility of the Selecting Official. According to Complainant, the Selecting Official claimed that the Agency did not use Censitrac until 2020, which directly conflicts with the record. The Selecting Official testified that the facility did not fully implement Censitrac until 2020. HT at 152-53. However, as the AJ noted, it was immaterial that the Selecting Official’s testimony differed from the testimony of other witnesses, because it was undisputed that Complainant had more Censitrac knowledge than the selectee. Complainant also challenges the Selecting Official’s testimony that each of the panelists recommended the selectee for the position, noting that Panelist-2 stated that she recommended Complainant be hired despite her lower interview score. We find that this is similarly immaterial, as the Selecting Official stated that she made the selection based on the overall resume and interview score and not based on recommendations from the interview panel. The AJ’s finding of no pretext was based on the substantial evidence of record. 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 order fully implementing the AJ’s decision finding no discrimination. 2022002685 7 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). 2022002685 8 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 March 6, 2023 Date