0120150523
02-12-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150523
Hearing No. 570-2012-00617X
Agency Nos. 2004-0512-2011104264
2004-0512-2012100362
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 16, 2014 final order concerning the two captioned EEO formal complaints that claimed unlawful 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 Social Worker at the Agency's Geriatrics Extended Care Program, Maryland Health Care System in Perry Point, Maryland.
Complainant filed two formal complaints on August 31, 2011 and, December 5, 2011, respectively.
Agency No. 2004-0512-2011104264 (hereinafter referred to as Complaint 1)
On August 31, 2011, Complainant filed a formal complaint claiming that she was subjected to harassment and a hostile work environment on the bases of disability, age, and in reprisal for prior EEO activity when:
1. on June 16, 2011, she was informed that she was not selected for the position of Social Worker (Trauma), GS-0185-12, advertised under Vacancy Announcement No. H11-27-473021;
2. on June 16, 2011, she was informed that she was not selected for the position of Housing Contract Specialist, Social Worker, GS-0185-12, advertised under Vacancy Announcement No. H11-38-474516;
3. on June 16, 2011, she was informed that she was not selected for the position of Care Coordination Home Tele-Health Social Worker, advertised under Vacancy Announcement No. H11-39-47938;
4. on June 16, 2011, she was informed that she was not selected for the position of Mental Health Intensive Care Manager (MHICM), Social Worker, GS-0185-12, advertised under Vacancy Announcement No. H11-37-474778;
5. on July 15, 2011, she was informed that she was not selected for the position of Program Coordinator (Social Worker), GS-0185-12, advertised under Vacancy Announcement No. H11-33-4730966;
6. on August 8, 2011, she was informed that she was not selected for the position of Social Worker (Grant & Per Diem Liaison), GS-0185-12, advertised under Vacancy Announcement No. h11-45-488900;
7. on September 2, 2011, she was informed that she was not selected for the position of Supervisory Social Worker, GS-1085-12, advertised under Vacancy Announcement No. H11-05;
8. on September 8, 2011, she was informed that she was not selected for the position of Social Worker, GS-0185-9/11, advertised under Vacancy Announcement No. H11-12; and
9. on September 8, 2011, she was informed that she was not selected for the position of HUDVASH Social Worker, GS-0185-12, advertised under Vacancy Announcement No. H11-78-515149.
Agency No. 2004-0512-2012100362 (hereinafter referred to as Complaint 2)
On December 5, 2011, Complainant filed a formal complaint claiming that she was subjected to harassment and a hostile work environment on the bases of disability and in reprisal for prior EEO activity when1:
10. on October 4, 2011, she discovered that her supervisor had removed her notes from a veteran's electronic file on September 26, 28 and 30, 2011;
11. on October 12, 2011, she made a request for reassignment to the Deputy Chief of Staff, and he told her on October 26, 2011, he had not received a reply from management and he was "out of the loop;"
12. on November 10, 2011, her supervisor gave her a rating of fully successful on her performance appraisal, which was lower than the previous year's rating; and
13. on November 1, 2011, management convened an Administrative Board of Investigation (ABI) into allegations that she disclosed confidential patient information to an outside source in violation of HIPPA regulations.
After the investigation, Complainant timely requested a hearing. Thereafter, the Agency filed a Motion for Summary Judgment. On April 11, 2013, the EEOC Administrative Judge (AJ) granted the Agency's motion concerning claims 5, 6 and 11. Specifically, the AJ found no evidence in the record that supported a finding of discrimination with based on age and disability.
The record reflects that on May 6 and 7, 2014, the AJ held a hearing by videoconference concerning the remaining claims (claims 1, 3, 7-10, and 12-13. The AJ appeared from Charlotte, North Carolina, while the parties and witnesses were located in Perry Point, Maryland. The AJ issued a decision on August 28, 2014, finding no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of disability, age and retaliation. The AJ further concluded that Complainant did not prove, by a preponderance of the evidence concerning claims 1, 3, 7-10, and 12-13, that the Agency's proffered reasons for its actions were a pretext for discrimination.2 Moreover, the AJ concluded that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
On October 16, 2014, the Agency fully implemented the AJ's in its final order.
In finding no discrimination, the AJ noted that in regard to claim 1, five candidates, including Complainant, were qualified for the position of Social Worker (Trauma), and were referred to the selecting official for consideration. The AJ further noted that a panel was convened to interview five candidates. However, Complainant chose a telephone interview. The AJ noted that the panel indicated that it sought candidates who possessed experience with patients who were treated for Post Traumatic Syndrome Disorder (PTSD). Based on the interviews, the panel selected the selectee for the subject position.
With respect to Complainant's allegation that she was more qualified than the selectee, the AJ noted that the record reflects that the selectee earned her Master's Degree in 2005, worked as an Agency intern in 2004 and 2005, obtained her Independent License in 2008, and worked in the Trauma Recovery Program.
During her testimony, the Acting Lead Social Worker (Acting Lead) stated that she was the delegated hiring official for the subject position. Specifically, the Acting Lead stated "my role is to actually schedule the interviews, determine who is interviewed and then make the recommendation to [Director of the Mental Health Clinical Center] as to who we would want to select." The Acting Lead stated that the panel sought an applicant with "experience working with trauma because it is a position within our trauma program. I'm looking for experience in mental health, and looking at experience working with the veteran population."
The Acting Lead stated that the selectee was selected for the subject position because she was best qualified. For instance, the Acting Lead testified that the selectee "had been hired in to work within our Trauma Program, having interned at Sheppard Pratt, I believe, in their Trauma Specialty Program, so her career had demonstrated trauma experience. After she did leave the Trauma Program, again, to the best of my recollection, she moved into a Substance Abuse Program within Mental Health as well, also as a social worker, within a Substance Abuse Program."
Further, the Acting Lead stated that the selectee "had tremendous experience providing the exact type of specific evidence-based treatments that would be needed for this position, specifically cognitive processing therapy and prolonged exposure, which are the treatments of choice with VA Maryland for providing clinical services to our Veterans with PTSD and other anxiety disorders." Moreover, the Acting Lead stated that Complainant was not recommended for the subject position because she was not best qualified.
Regarding claim 3, the AJ noted that Complainant was qualified for the position of Care Coordination Home Tele-Health Social Worker. The AJ further stated that an interview panel was seeking a candidate with excellent interpersonal skills and the ability to "zero in on a patient's treatment plan, determine the patient's capabilities, establish immediate rapport, and provide the best customer service so the patient can become compliant with the program."
The AJ noted that the selectee was chosen for the subject position based on his work experience. Specifically, the AJ noted that the selectee possessed the interpersonal skills needed because there was a considerable amount of telephone work. The AJ noted the testimony given indicated that Complainant was not selected because she did not possess case management experience and did not have experience in doing actual therapeutic, intervention, triage, and diagnosing.
Regarding claim 5, the AJ noted that Complainant applied for the position of Program Coordinator (Social Worker) and was deemed qualified. The AJ noted, however, the vacancy announcement was recalled and the Agency did not make a selection from the related certificate of candidates. The position was re-announced on August 18, 2011, and Complainant did not re-apply for the subject position.
Regarding claim 6, the AJ noted that the three candidates, including Complainant, were qualified for the positions of Social Worker (Grant & Per Diem Liaison) and were referred to the selecting official for consideration. The AJ noted that an interview panel was established and all candidates were interviewed. Based on the applications and interviews, two candidates were selected for the subject positions.
The AJ noted that according to one of the panelists, the two selectees scored higher than Complainant and were better qualified than Complainant. The record reflects that the selectees received overall scores of 97 and 90 respectively, while Complainant received an overall score of 44. The panelist also stated that the selectees were more qualified based on their work experience working with homeless veterans and homeless patients with serious mental illnesses.
During his testimony, the panelist stated the two selectees "answered the questions more concisely. They really hit the nail on the head and they answered the questions that we had asked every applicant. They were able to get across the point that they had the experience that we were looking for in a clear, concise manner." The panelist stated that during her interview, Complainant's answers "tended to be wandering, not as clear and concise, and the evidence for homeless experience was not evident within the answers that she gave."
Regarding claim 7, the Deputy Regional Manager (Deputy) testified that he was the selecting official for the position of Supervisory Social Worker. The Deputy further stated "I did not actually participate in the interview panel. I had three of my staff in my office in Towson who comprised the interview panel, but - - they forwarded the name to me, the candidate, and then I made a decision whether or not based on . . . the interviews and the resume, whether or not the person would be selected."
The Deputy acknowledged stated that Complainant was considered qualified for the subject position. However, the Director stated that Complainant was not interviewed because she did not rank high enough to be referred for the interview. Specifically, the Deputy stated there were approximately eleven candidates, including Complainant, "then we had a readjustment counseling therapist, supervisory readjustment counseling therapist certification. I want to say maybe there were six or seven individuals maybe on that certification...that's just entirely too many people. That would take days. What we often do is the candidates on the certification are well qualified for the job, but what we do is, using objective criteria, we go ahead and do best qualified. So, we take the top based on criteria we apply to the resumes."
The Deputy stated that he chose the selectee for the subject position because she was the top candidate based on her extensive work experience. Specifically, the Deputy stated that the selectee previously held the subject position for several years and subsequently was promoted "to a higher grade with a lot more responsibility than a team leader."
Regarding claim 8, the AJ noted there were no interviews conducted for the position of Social Worker. Complainant alleged that she was better qualified than a named male employee. The AJ noted, however, the named male employee was not the selectee of record, and that a named female employee was selected for the subject position.
The Supervisory Social Worker testified that he was on the panel for the subject position. Specifically, the Supervisory Social Worker stated after he received the list of qualified candidates from Human Resources which had "approximately maybe 20 or 30 people on it...and I reviewed resumes, and we were looking in that position for someone who had inpatient med-surg experience, who had experience with kind of all the phases of social work services in an inpatient medical setting. And ideally, we wanted a person to also have familiarity with the VA. And so, I looked through the list, through the resumes, and narrowed down to [to] a name selection of [selectee]."
Further, the Supervisory Social Worker testified that the selectee was selected for the subject position because she had inpatient acute medical experience. The Supervisory Social Worker stated that according to her resume, Complainant did not have inpatient or acute medicine experience.
Regarding claim 9, the AJ noted that Complainant applied and was qualified for the position of HUDVASH Social Worker. The AJ further noted that the interviews were conducted which resulted in Complainant receiving a low score. The AJ noted that the highest scores were achieved by the selectees.
The Acting Lead testified that she was one of the panelists for the subject position. The Acting Lead stated that following the interviews, the panel recommended seven candidates for consideration because "they all had higher interview rating scores at the conclusion of the interviews." The Acting Lead found that the seven selectees earned high scores based on "their ability to communicate better skills sets in the questions that I was asking."
Regarding claim 10, the AJ noted that Complainant acknowledged sharing a patient's legal history with a nursing home where he was assigned. Specifically, Complainant stated that she shared the patient's legal history with the nursing home staff in which the patient had a history of incarceration and had serve time for rape, assault and domestic violence. As a result, the nursing home immediately removed the patient from its facility, which rendered him homeless.
The AJ also noted that Complainant acknowledged entering progress notes in the patient's record which made reference to the patient's legal history. During her testimony, Complainant stated that on October 4, 2011, she learned that her supervisor had removed her notes from the patient's electronic file on September 26, 28 and 30, 2011. The AJ determined that, contrary to Complainant's testimony, the record reflects that the supervisor actually "hid" Complainant's notes entered by Complainant. According to the Social Work Executive (Executive), he testified that the supervisor had the medical administration service "shadow" Complainant's notes concerning the patient's legal history. The Executive stated that Complainant's notes were "shadowed or - - there's a way that they removed that note. It's still there but it's not readable, as I understand it."
Further the Executive stated that the patient's legal history Complainant shared with the nursing home staff "was not suitable for the care of the patient, and that information was not correct." The Executive stated that the patient "was never convicted. He was just charged of it, and that was in the record. And information on the website isn't always accurate...[patient] had suffered some emotional harm to this. He was extremely distraught. He was very upset. He had to be provided additional counseling when he got here because of it."
The AJ noted in her affidavit, Complainant's supervisor acknowledged sharing her concerns about Complainant's notes concerning a veteran patient with the Chief. Specifically, the supervisor stated that Complainant documented that the veteran patient "had a history of incarceration, that in 2009, had served one and a half years for charges of rape, battery, and assault, and that she had pulled this from the Maryland's judiciary web page, which she then posted in the patient's records...as a result of this, this veteran - - the nursing home asked that this veteran leave immediately, and that wasn't possible. They... didn't ask for any verification."
Further, the supervisor stated that Complainant "put me down as a cosigner, so as a supervisor, I cosign this note. I then went to my boss, [Chief], and said to him - I said I had some real concerns about this because it was not true, and I wasn't sure where she even got this legal history. And she posted something in there that was false and didn't discuss it with the veteran...[Chief] sent it on up to Risk Management, who sent it up to the chief of staff, who sent it to our attorney. The attorney wanted her to do a report of contact, [as to] why she posted this in the record and why she divulged this information. She really did not respond on the report of contact." The supervisor stated that during the relevant period, the veteran patient contacted Agency officials demanding that Complainant receive disciplinary action "for this potential violation of what he thought was a social work ethnical code regarding him, and he also requested that any notes dated 9/26 - - or any notes by [Complainant] be amended or removed."
The supervisor stated at that time, she contacted a named employee about Complainant's notes concerning the veteran patient, and she suggested that notes be hidden in the electronic files. Specifically, the supervisor stated "the notes would not be removed, but they would be hidden, and so I sent this back up to my boss and the risk manager, and they felt until they could evaluate the notes and see if there were any violations or anything that would also make this veteran sue us, that they would review it, so the notes were hidden."
Regarding claim 11, the AJ noted that on October 12, 2011, Complainant made a request for a reassignment to the Deputy Chief of Staff, and he told her on October 26, 2011, he had not received a reply from management and he was "out of the loop."
The supervisor stated that Complainant asked her to be reassigned and "I said to her, 'I can only reassign you within my department... I can only reassign you within Geriatrics and Long-Term Care,' but I would discuss it with [Chief.]. And I did tell him. All I said was, '[Complainant] would like to be reassigned,' and that was somewhere around the first week of October, somewhere in there, and that was it." Furthermore, the supervisor stated "I think [Chief] said, 'Okay,' and... I think that's up to him."
Regarding claim 12, the AJ noted that on November 10, 2011, Complainant's supervisor gave her a rating of fully successful on her performance appraisal which was lower than the previous year rating. The AJ further noted that a review of the record reflects that the lowered performance appraisal was due to the improper notes placed in the veteran patient's medical records discussed above.
Regarding claim 13, the AJ noted that during the relevant period, Complainant was under investigation for disclosing confidential patient information and violating the HIPAA as well as other Agency regulations. The record reflects that the affected veteran patient complained about Complainant informing the nursing home about his legal history and included the same information in his medical records. The patient demanded that the Agency remove the information from his medical records.
The AJ noted in her testimony, the Nurse Case Manager stated that in November 2011, she was involved with an Administrative Board of Investigation concerning Complainant. Specifically, the Nurse Case Manager stated that the Director of VAMHCS sent her a memorandum requesting that she participate in a Board of Investigation "with a couple other team members to an allegation that was made by a patient." The Nurse Case Manager stated that the patient alleged that Complainant "gave more than what was required to the nursing home and, as he put it, caused him harm. She divulged more than he thought was necessary."
With respect to Complainant's allegation that the supervisor notified her of the Administrative Board of Investigation occurring because of the erroneous legal information concerning a veteran patient, the supervisor denied it. The supervisor stated "that's false. I had nothing to do with the administrative board. I never notified [Complainant] of an administrative board. That's all through our Compliance and Business Integrity Officer...she's the one that's doing the administrative board."
Complainant, on appeal, argues that the AJ erred finding no discrimination. For instance, Complainant argues that the AJ's decision "simply concludes that the Complainant improperly disclosed information with no discussion or analysis. Even today, it is unclear how the agency justifies even the beginning of an argument that the Complainant should not have disclosed the information."
Further, Complainant argued that numerous non-selections "make it clear that the Complainant has not gotten impartial treatment. The agency would have the Judge believe that none of the selecting officials ever noticed that they were always finding against the Complainant in favor of dramatically less qualified applicants."
The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, we again note that the AJ chose to conduct this hearing by videoconference. In Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006), the Commission recently determined that videoconferencing provides an acceptable alternative to an in-person hearing. The Commission identified a number of factors that an Administrative Judge should consider before electing to proceed via videoconferencing, including: the availability and proximity to the participants of the videoconferencing facilities; the adequacy of the available videoconferencing facilities, to include any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objections of the parties, if any. Id.
In the instant case, the AJ, as in Allen, there is no indication of objection to the use of video-conferencing by either party. Under these circumstances, the Commission concludes that the AJ did not abuse her discretion by electing to hold a video-conference hearing; and that the record, including the hearing transcript, does not reflect that the video-conference was so technically deficient as to preclude the AJ from rendering a reasoned decision, notwithstanding the appellate arguments of Complainant to the contrary.
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
February 12, 2015
__________________
Date
1 For ease of reference, the Commission has re-numbered Complainant's claims as claims 10-13.
2 The record reflects that during the hearing, Complainant withdrew claims 2 and 4. The record further reflects although the AJ granted the Agency's motion for a summary judgment concerning claims 5, 6 and 11, she addressed these claims in her decision.
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Office of Federal Operations
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Washington, DC 20013
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