Carolyn M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 25, 2019

2019001822 (E.E.O.C. Sep. 25, 2019)

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

Carolyn M.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019001822

Agency No. 200H-0646-2018100220

DECISION

On January 18, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s December 19, 2018 final decision concerning an equal employment opportunity
(EEO) complaint claiming 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Registered Nurse at the Agency’s
Pittsburgh VA Medical Center in Pittsburgh, Pennsylvania.

On November 20, 2017, Complainant filed the instant formal complaint. Complainant claimed
that the Agency discriminated against her based on race (Caucasian) and age (age 48) when, on
September 29, 2017, she was not selected for the positions of Registered Nurse, Patient Care
Coordinator, under Vacancy Announcement Numbers HP-646-17-CAS-2003090 and HP-646-
17-CAS-1999504-BU.

After the investigation, Complainant was provided with a copy of the report of the investigation
and with a notice of the right to request a hearing before an EEOC Administrative Judge or a
final decision within thirty days of receipt of the correspondence. Complainant did not respond.

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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On December 19, 2018, the Agency issued its final decision, pursuant to 29 C.F.R. §
1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie case of discrimination by presenting facts which, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its
burden, the complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the agency acted based on a prohibited reason. See St.
Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, non-discriminatory reasons for its actions, as more
fully discussed below.

Complainant has worked for the Agency for over 24 years. Complainant timely submitted
application for two Registered Nurse positions under Vacancy Announcement Numbers HP-646-
17-CAS-2003090 and HP-646-17-CAS-1999504-BU. Both vacancies were for the same
position – Registered Nurse, Patient Care Coordinator – but were at different locations within the
Pittsburgh VA Medical Center. The panel members and selecting official were different for each
selection process. Complainant believed that her race and age were factors in her non-selection
for the Registered Nurse positions.

Vacancy Announcement Number HP-646-17-CAS-2003090

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Regarding Vacancy Announcement Number HP-646-17-CAS-2003090, the Associate Chief
Nurse of Patient Care Services (African-American, over 40 years) was the selecting official. The
selecting official stated that she implemented an interview panel of three Agency officials,
including herself.

Following the interviews, the selecting official stated that she chose the selectee (Caucasian, age
44) for the subject position because she was deemed the most qualified candidate. Specifically,
the selecting official stated that the selectee “was able to speak to progressive leadership
experiences in her current role, guiding co-workers, delegating work, making assignments and
coaching and mentoring peers. These qualities are needed in the role of patient care coordinator
for a large group of staff.” The selecting official explained that she did not select Complainant
for the subject position because she was not the most qualified candidate.

The Associate Chief Nurse, Patient Care Service Line (Caucasian, over 40 years) stated that he
was one of the three panelists. The panelist stated that the selecting official selected the selectee
for the subject position because she was “able to demonstrate that she was functioning at a higher
level with her answering of interview questions.” The panelist noted that Complainant scored
“lower on the interview tool than that of the selected candidate. She did not interview as well as
others had.”

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination. As an
initial matter, we note that the selectee was the same race as Complainant and close to her in age.
Complainant argues that she was better qualified based on her length of service and education.
We note, however, that these factors were considered when Complainant was found qualified to
be interviewed. The record shows the interview panel asked questions related to problem
solving, managing teams, and working with diverse groups – things that cannot be ascertained
solely by resume and length of service. This indicates that the Agency was looking for those
specific qualities, regardless of tenure or education. Complainant has not shown that the alleged
disparities in qualifications between herself and the selectee were “of such weight and
significance that no reasonable person, in the exercise of impartial judgment, could have chosen
the [selectee] over [her] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732
(11th Cir. 2004); see also, Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006).

Vacancy Announcement Number HP--646-17-CAS-1999504-BU

Regarding the second Registered Nurse position (Vacancy Announcement Number HP--646-17-
CAS-1999504-BU), the Associate Chief Nurse, Long Term (Caucasian, over 40) stated that he
was the selecting official for the subject position. He stated that he set up an interview panel of
two Agency officials. Following the interviews, the selecting official received scores from the
panel “to determine the top scoring candidate.” The selecting official stated, however, there was
no selection because none of the internal candidates, including Complainant, scored high enough
to be considered for the position.

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As a result, the vacancy announcement was reposted. Complainant was not considered for
selection on the new reposted announcement because her application was rejected by human
resources because she did not include her resume. Therefore, Complainant was not referred or
interviewed under the second announcement to which a selection was made. The selectee (age
46, race not identified in the record) was a candidate from the outside the Agency, who was close
in age to Complainant. Complainant conceded that she was not aware of the qualifications of the
selectee.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination.

CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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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
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

September 25, 2019
Date