0120132482
09-18-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120132482
Hearing No. 520-2011-00231X
Agency No. 200H-0523-2010103789
DECISION
Complainant filed an appeal from the Agency's May 9, 2013 final order concerning her equal employment opportunity (EEO) complaint. She alleged 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 an Assistant Nurse Manager, Nurse III, Step 1, at the Agency's Hospice, Palliative Care Service at the Community Living Center facility, in Brockton, Massachusetts.
On September 29, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On June 10, 2010, Complainant was removed from her detailed position as Acting Nurse Manager of Ward 42-C; and
2. On September 1, 2010, Complainant was not selected to the position of Nurse Manager, Announcement Number 10-65.
The pertinent record reflects the following facts. Complainant has worked in her position for five years in Palliative Care. She is over age 40 and has prior EEO activity.
She reports to the Acting Clinical Coordinator (S1) (male, over 40, EEO unknown). Her second level supervisor was the Associate Chief Nurse, (female, over 40, who was not named in the complaint, but was aware of Complainant's prior activity).
On Monday, March 15, 2010, Complainant was temporarily detailed to function as Acting Nurse Manager of Ward 42-C for a period not to exceed 120 days.
Management ended the detail after only 90 days. The stated reason for ending the detail was that Complainant had "demonstrated inappropriate behavior through inaccurate statements, failure to follow proper procedures as directed and demonstrating behavior that is resistive to direction."
On June 14, 2010, the Agency posted a Vacancy Announcement for a Nurse Manager of Ward 42-C. Complainant applied and was interviewed. On September 1, 2010, Complainant was notified that she had not been selected for the position.
Complainant made initial EEO contact on June 29, 2010, and on September 29, 2010, she filed a formal complaint and added a claim regarding her non-election on September 1, 2010.
In her complaint, Complainant named her immediate supervisor (S1) and another management official, who was not the Selecting Official, as the responsible management officials. Complainant did not name, as a responsible management official, the selecting official in this case, who also had also been on the interview panel.
Although named, S1 did not interview Complainant because his temporary position at the Campus ended and he did not further participate in the selection process.
A female was selected. She had a Master's Degree in Nursing. Complainant had a Bachelor's Degree. Both candidates were qualified for the position.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before a United States Equal Employment Opportunity Commission Administrative Judge (AJ).
The AJ held a hearing on April 5, 2012, September 18, 2012, November 7, 2012 and January 8, 2013. The AJ issued a decision in favor of the Agency on April 25, 2013.
The AJ found that the Agency articulated legitimate reasons for ending the detail. The AJ stated "among the bases cited by [the management witness] for early termination of the detail was that Complainant was resistive to direction and that he was concerned about Complainant giving him inaccurate information." The AJ found that the record provides solid support for management's concerns. The AJ also noted that "Complainant admitted at hearing that the information she gave management was 'incorrect.'" A management witness also testified that there were serious staffing issues in Complainant's Unit and he was concerned that Complainant's collateral duties and activities were taking away from her time on the unit.
The AJ also referenced the evidence that Complainant did not coordinate with Human Resources on an action, although she admitted that she had been directed to go through HR when issuing a PIP to an employee. The PIP was later determined to be invalid
With regard to the claim 2 - non-selection, the AJ found that Complainant established her claims on the basis of age and reprisal, but not sex discrimination because a female had been selected. The AJ found that the Agency articulated legitimate non-discriminatory reasons for. The Agency selected the candidate because she had a Master's Degree in Nursing and held managerial nursing positions as an Assistant Director of Nursing at another healthcare facility. She also received an "outstanding" on her last two VA performance appraisals while Complainant received an "outstanding" on one of her evaluation. The AJ found that despite the fact that Complainant was well qualified, there is no evidence that her qualifications were plainly superior to those of the selectee. The AJ concluded that Complainant did not prove the articulated reasons for the early termination of her temporary detail and non-selection to be false, unworthy of credence or a pretext for age or sex discrimination. The AJ reasons that complainant disagreed with the Agency's reasons and believed they did not warrant early termination of the detail.
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.
On appeal, Complainant argues that the AJ failed to give credence to her evidence that the Director of Palliative Care Program gave Complainant a glowing reference. Complainant also argues that the AJ erred when the AJ excluded two key eyewitnesses. Complainant maintains that the witnesses would have shown that management used the "exact same tactics used against Complainant, that is, lies, misrepresentations and personal vendetta." Complainant maintains that it was error that none of the employees whom she supervised were interviewed and that the selection process was tainted because of the influence of one of the officials. Complainant argued that the Agency erred in failing to place strong emphasis on the fact that Complainant had Palliative Care experience and the selectee did not.
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).
Disparate Treatment / Sex, Age & Reprisal
Section 717 of Title VII states that "all personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination." Similarly, Section 633(a) of the Age Act requires that all federal personnel actions be made free of age discrimination.
To prevail in a disparate treatment claim, Complainant must establish that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
For purposes of our analysis, we will presume that Complainant established her prima facie claims with regard to her age and reprisal claims, but not the sex discrimination claim, because a female was selected for the position that Complainant sought. However, the prima facie inquiry may be bypassed, where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 (1983).
The AJ found that the Agency articulated legitimate reasons. The AJ found that Complainant's detail was terminated early due to perceived misconduct by Complainant and that she was denied a promotion because the Agency determined that the other candidate was the best qualified. To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
We find that Complainant failed to show that the stated reasons were untrue or a pretext.
In this case, Complainant did not provide any evidence that would provide a basis to overturn the AJ's findings and conclusions of law. The AJ found no discrimination based on the facts and her legal conclusion is entitled to deference because it is supported by substantial evidence.
After a careful review of the record, we agree with the conclusion of the AJ that Complainant did not show by a preponderance of the evidence that she was discriminated against because of her sex, age or reprisal.
CONCLUSION
Accordingly, for the reasons listed above, we AFFIRM the Agency's Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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, 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 (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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 18, 2015
__________________
Date
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