0120122756
09-09-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122756
Hearing No. 520-2011-00120X
Agency No. 200H-0523-2010103953
DECISION
On June 8, 2012, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's May 10, 2012, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nurse Manager at the Agency's Veterans Affairs Medical Center (VAMC) in Brockton, Massachusetts.
On August 13, 2010, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against her based on reprisal for prior protected EEO activity under Title VII and the ADEA when on September 1, 2010, she was not selected, pursuant to vacancy announcement 10 - 60, to be Nurse Manager of the Chronic Mental Health Unit (Unit 22B) located at the VAMC in Brockton, Massachusetts.1 For Complainant, this was a lateral position.
Following an investigation and hearing before an EEOC Administrative Judge (AJ) on the above issue, the AJ found no discrimination, and the Agency implemented this decision.
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. (November 9, 1999).
Complainant applied for the job at issue following an internal vacancy announcement posted in May 2010. The AJ determined that Complainant established a prima facie case of discrimination. She found that Complainant engaged in EEO activity when in July 2010 her attorney wrote the Agency that Complainant intended to file an EEO complaint, and later did so. The letter was sent in early July 2010. The AJ found that the lead dual selecting official, Complainant's second line supervisor, was aware of the above letter or was told of the same information therein. We also note that after Complainant initiated EEO counseling the counselor interviewed the lead joint selecting official on or prior to August 9, 2010. The selectee, not the Complainant, was chosen on September 1, 2010, an adverse action which occurred shortly after Complainant's EEO activity started and was still ongoing.
The selectee applied for the position on or about June 15, 2010, following a vacancy announcement which allowed outside candidates. The AJ found that the dual selecting officials chose the selectee because they believed he was the best qualified candidate. In making this finding, the AJ wrote that based on her observation of them while they testified, their mannerism, facial expressions, and what they were said that they were enthusiastic about the selectee's qualifications, especially the lead selecting official. The AJ recounted the dual selecting officials testimony on the selectee's positive qualifications - his work in mental health centers in two hospitals (which included years as Nurse Supervisor and Manager), his clinical experience in geriatric psychiatric wards similar to what was needed in the VAMC ward, his enthusiasm and wealth of knowledge, his involvement in a program to prevent patients from falling without restraints (he spearheaded the program on a geriatric psychiatric unit, resulting in a 58% reduction in falls with injury), having a Master's of Science in Nursing (as opposed to Complainant's Associates Degree), and serving as a part-time clinical instructor.
The AJ found that while Complainant was also highly qualified, she did not show that her qualifications were such as to demonstrate pretext to mask reprisal discrimination. Complainant conceded that during her job interview she was very nervous, stressed, and was not herself, suggesting she did do well therein. Hearing Transcript (HT), 201.
Three of the eleven candidates were interviewed, including the selectee and Complainant. Report of Investigation (ROI), 262. The referral certificate for the announcement which allowed outside candidates contained the instruction that it must be returned with a decision by August 14, 2010. The selectee was on the certificate. Complainant was not because she applied internally. Complainant was interviewed on August 11, 2010, and the selectee on September 1, 2010. When asked if she got an extension on the certificate the lead selecting official replied she did not know or recall. HT, 50.
The second dual selecting official testified that her initial list of candidates to interview only contained Complainant and Applicant 2. She testified that after the completion of Complainant's interview she believed that was the end of the interview process. Applicant 2 had already been interviewed. She testified that after Complainant's interview she and the lead selecting official agreed that Complainant should be chosen over Applicant 2. She indicated that the lead selecting official indicated Complainant was chosen. HT, 160 - 161. The second dual selecting official testified that thereafter the lead selecting official told her she was looking for a "bigger pool of candidates" and advised the eventual selectee would be interviewed. The second dual selecting official testified that this departed from normal practice. Specifically, she testified that she served on over 10 promotion panels, always knew who the candidates would be from the beginning, and never agreed on a candidate for a position and then an additional candidate surfaced. The lead selecting official did not indicate in her testimony that Complainant was ever provisionally selected.
Referring to the above facts, Complainant made contentions regarding pretext, which the AJ addressed in her decision. The AJ found that the fact that the Agency did not put in evidence explaining how the administrative issue of the certificate expiring was handled did not prove reprisal discrimination. The AJ suggested that when she serves as a selecting official getting an extension is not difficult, and the possible expiration thereof was evidence of ineptitude or something unrelated to reprisal.
Regarding the second dual selecting official's testimony that she thought Complainant was already selected and the departure from normal practice, the AJ noted that there was no selection certificate indicating Complainant was selected, Complainant was not notified she was the selectee, and it was noted the lead selecting official wanted to broaden the pool. The AJ found that decision to broaden the pool without more did not prove reprisal discrimination.
On appeal Complainant argues that the AJ prevented her from developing evidence which would prove her case and could be used to impeach witnesses. Specifically, she argues that the AJ did not approve her request to use the selectee as a witness. She wanted to question him about his notification to be interviewed and previously proffered that he would testify he was not notified of his selection until the second or third week of September (after Complainant was notified of her rejection). The AJ sustained objections when Complainant asked questions both about the order of the interviews and seeking to develop information on her fourth level supervisor knowledge that she threatened to file an EEO complaint.
Complainant also argues that the AJ used the wrong standard to prove reprisal discrimination. At the hearing and in the bench decision the AJ stated that Complainant had to show that the only reason she was not selected was reprisal discrimination. Complainant argues that to prevail, she had to prove reprisal played a motivating factor or any role in the decision not to select her.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
We agree, for the reasons set out by the AJ, that Complainant established a prima facie case of reprisal discrimination, that the Agency articulated legitimate, nondiscriminatory reasons for not selecting her, and Complainant failed to prove pretext or otherwise prove discrimination.
We find that none of the AJ's evidentiary rulings Complainant raises on appeal affected the outcome of the case. Complainant was able to get evidence in, which the AJ credited, that her fourth level supervisor was aware of her prior EEO activity. Further, while the fourth level supervisor had to approve any selection, the AJ credited her testimony that she did not actually play a role in the selection process because deferred to the selection recommendations of her subordinates - a rubber stamp. This is supported by substantial evidence. For this reason her knowledge or lack thereof of Complainant's EEO activity was irrelevant. The record contains the identity of the interviewed candidates and the dates of their interviews. In sustaining objections during the hearing, the AJ explained that she did not see how information on the order of interviews or the date the selectee was notified of his selection would prove reprisal discrimination.
AJs have broad discretion in the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110) at 7-8 to 7-14 (revised November 9, 1999). Where EEOC regulations allow an AJ to exercise her discretion, our review is properly limited to assessing only whether the AJ's decision amounts to an abuse of discretion. Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (Feb. 16, 2012). We find the AJ did not abuse her discretion in making the evidentiary rulings which Complainant raises on appeal. We note that the AJ found the testimony very credible that the selectee was chosen because it was believed he was the best qualified candidate. The AJ found, in effect, that this outweighed evidence of procedural irregularities. The AJ's finding of no discrimination is supported by substantial evidence.
We agree with Complainant that the AJ described an incorrect standard for proving reprisal discrimination. We find, however, that the AJ did not apply this standard. Nowhere in the bench decision did the AJ indicate that she believed reprisal played any role in the decision to select Complainant. Rather, the AJ believed the Agency's reasons for choosing the selectee, finding them completely credible, and did not indicate that any other factors played a role.
The Agency's Final Order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 09, 2014
__________________
Date
1Complainant made other claims in her complaint, as amended. She only appeals the above issue.
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0120122756
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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