Ada T.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Feb 23, 2017

0120150027 (E.E.O.C. Feb. 23, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ada T.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120150027

Agency No. 200I-0675-2013104450

DECISION

On September 25, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s August 27, 2014, final decision 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a former employee at the
Orlando Veterans Affairs Medical Center (VAMC) who was then employed by a private
physician. On October 10, 2013, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (Black), color (brown), and in reprisal
for prior protected EEO activity when on August 19, 2013, she was not selected for the
position of Advanced Registered Nurse Practitioner (ARNP) Mental Health, Vacancy
Announcement Number DAY-12-SS-708968R19.

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 EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame

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.
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provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

FACTUAL BACKGROUND

The record shows that Complainant applied and was deemed qualified for the position of
Advanced Registered Nurse Practitioner (ARNP) Mental Health, under Vacancy
Announcement Number DAY-12-SS-708968R19. The vacancy announcement opened on
August 13, 2012, and closed on December 31, 2012. Complainant was referred to the
selection official but did not receive an interview. Two vacancies were available under the
announcement; one was located in Viera, Florida and the other in Daytona Beach, Florida.
Complainant was referred to the Viera location on a non-veteran candidate certificate. One
selection (SE1) was made for the Daytona Beach location. Complainant did not want to be
considered for Daytona Beach. No selections were made for the Viera location.

When Vacancy Announcement Number DAY-12-SS-708968R19 closed, the human resources
office opened a new announcement on January 1, 2013, under Vacancy Announcement
Number 835006, which was scheduled to run through the entire calendar year. The human
resources office also received permission from Veterans Affairs Central Office to advertise for
a physician assistant. The plan was to hire either an ARNP or a physician assistant.

Complainant applied again for the ARNP position under Vacancy Announcement Number
835006. The human resources office did not send a certificate of eligible candidates under this
vacancy because the facility was considering making a selection from the physician assistant
vacancy announcement instead. Complainant confirmed that the Agency preferred to hire
physician assistants over ARNPs.

Subsequently, the Agency interviewed and hired a transfer employee (SE2) working in Mental
Health at the Veterans Affairs facility in Palm Beach, Florida, under the physician assistant
vacancy announcement. On March 29, 2013, Complainant was notified that the ARNP
vacancy announcement had been canceled.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).
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We agree with the Agency’s finding that Complainant failed to prove by a preponderance of
the evidence that the Agency’s articulated reason for its employment action was a pretext or
otherwise motivated by discriminatory/retaliatory animus. While there is no dispute that the
Complainant was qualified for the ARNP position, the documentary and testimonial record
shows that the Agency decided to cancel the ARNP vacancy announcement and to hire a
physician assistant instead. We agree with the Agency in concluding that the fact that
Complainant was qualified for the ARNP position is insufficient to show discriminatory intent.
We note that the record is otherwise devoid of discriminatory or retaliatory animus.

CONCLUSION

Based on a thorough review of the record we AFFIRM the Agency’s decision, and note that
Complainant fails to raise any arguments on appeal.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
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supporting documentation must be submitted with your 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

February 23, 2017
Date