Georgeann R.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 30, 2017

0120150752 (E.E.O.C. Mar. 30, 2017)

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

Georgeann R.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120150752

Agency No. 200J-0537-2013103295

DECISION

The Commission accepts Complainant’s appeal from the November 19, 2014, final Agency
decision (FAD) 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. The Commissions’ review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical
Nurse (LPN) at the Agency’s Jesse Brown VA Medical Center in Chicago, Illinois.
Complainant was previously an LPN in the facility’s Emergency Room (ER). In 2008, the
Director of the Emergency Room decided that patient care in the ER would only be performed
by Registered Nurses, not LPNs. As a result, Complainant and all other patient care LPNs
were reassigned to other departments. Complainant subsequently filed an EEO complaint
regarding her reassignment in June 2008.

On February 2, 2013, Complainant applied for a vacant LPN position in the triage area under
Vacancy Announcement No. JB-0118-830378. Complainant was found qualified for the
position and referred for further consideration. Complainant and one other candidate were
interviewed by a panel consisting of two nurses and a doctor, including the Selecting Official

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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(SO). SO was previously Complainant’s immediate supervisor prior to her reassignment in
2008, and was identified as a responsible management official in her EEO complaint.

The interview panel used an “interview tool” to ask each candidate the same questions and rate
their interviews. Complainant alleged that during the interview, SO asked her questions “like
she didn’t know me…like she didn’t know my performance.” Complainant claimed that she
responded and just “answered the questions…and ignored the fact that [SO] should know
already my performance.” Following the interviews, the panel tallied the scores. Complainant
received a score of 74 out of a possible 150 while the second candidate received a score of
146. After receiving the interview scores, SO selected the second candidate as the Selectee.

On June 24, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her in reprisal for prior protected EEO activity under when on May 24,
2013, she was not selected for the position of Licensed Practical Nurse under Vacancy
Announcement No. JB-0118-830378.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
FAD. In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency initially assumed arguendo that Complainant established a prima facie
case of reprisal, and found that management had articulated legitimate, non-retaliatory reasons
for its actions. In particular, SO stated that she selected the Selectee based on her superior
interview scores. The Agency noted that the interview panelists’ notes and statements
supported SO’s decision. The Agency determined that Complainant failed to show that
management’s reasons for not selecting her were pretextual. As a result, the Agency found
that Complainant had not been subjected to reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Selectee should not have been selected due to a
previous incident with a patient. Further, Complainant claims that the Selectee did not apply
for the position properly and was given assistance. Complainant alleges that SO did not follow
the proper procedures in selecting a candidate and chose her preferred candidate.
Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

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,
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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. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of reprisal, the Commission finds that the Agency articulated legitimate, non-retaliatory
reasons for its actions. More specifically, SO explained that she received a certificate of
eligible candidates from the Nurse Recruiter and she and the interview panel interviewed the
candidates asking the same questions about nursing care, interpersonal relationships, and
teamwork. ROI, at 122. The panel rated the candidates’ responses to each question on a scale
from one to five. Id. at 330. The interview panel determined that the Selectee’s responses to
the questions and examples provided made her the more qualified candidate. Id. at 124.

The panel sought a candidate who best demonstrated two main skills: the ability to sense
clinical severity and the ability to manipulate and easily learn new suites of software. ROI, at
132. One panelist explained that he had worked with both candidates, and he believed that the
Selectee was the better candidate in demonstrating those skills. Id. at 132. Based on the
Selectee’s more accomplished performance in those skills, he rated her higher than
Complainant. Id. at 133. A second panelist affirmed that the Selectee provided more detailed
responses, including one response regarding how she would respond if a patient’s condition
worsened. Id. at 140. The panelist stated that she was impressed with the selectee’s
description of how she would respond using her skills and techniques as a psychiatric nurse
and other alternatives. Id.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency’s proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

In attempting to establish that the Agency’s reasons for not selecting her for the position were
pretext, Complainant alleges that SO preselected the Selectee. The record indicates that the
Selectee was already working in a detail assignment in the position when she applied and was
eventually selected for the position. ROI, at 338. The Commission has consistently held that
preselection does not violate Title VII when such preselection is based on the qualifications of
the preselected party and not upon a prohibited basis. See Goostree v. Tennessee, 796 F.2d
854, 861 (6th Cir. 1986) (preselection, unless based on unlawful discrimination, is not
prohibited); McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994).
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The Commission notes that Complainant did not argue that the Selectee was not qualified for
the position and admitted that she did not know the Selectee’s qualifications. ROI, at 116.2
While preselection may be relevant evidence of the Agency’s motivation, the Commission does
not find that the Selectee was preselected for retaliatory reasons, based on the record before the
Commission.

Furthermore, Complainant argues that the Agency did not follow proper selection procedures
because the Selectee’s name did not appear on the original hiring certificate. The Nurse
Recruiter explained that the Selectee had difficulty applying online during the open period;
therefore, her application was accepted outside of the online process and she was considered as
an “add-on” to the certificate. ROI, at 169. The Nurse Recruiter stated that the Agency had a
policy of working with internal and external candidates who had difficulties applying online
during the open period for a position and allowing them to still be considered for positions. Id.
The Nurse Recruiter added that the Selectee also could have been added to the certificate under
a direct hiring authority for this position as it was considered a “hybrid position.” Id. at 170.
This appears to be what occurred as SO officially requested that the Selectee be hired for the
position as a “direct hire” following the interview process and the Human Resources Office
processed the matter as a reassignment. Id. at 338, 339.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge’s credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no persuasive evidence that Complainant’s prior protected activity was a
factor in any of the Agency’s actions. While the Commission agrees that the circumstances of
the Selectee’s selection were unusual, the Commission has long held that an Agency has broad
discretion to set policies and carry out personnel decisions, and should not be second-guessed
by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at
259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).

Complainant failed to show that her qualifications for the position at issue were plainly
superior to those of the Selectee. In this case, the Selectee had attributes that justified her
selection, and the selecting official and interview panel members affirmed that they believed
the Selectee was better equipped to meet the Agency’s needs. In the absence of evidence of
unlawful discrimination, the Commission will not second guess the Agency’s assessment of the
candidates’ qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259.

2 The Commission notes that the Agency did not provide the Selectee’s application materials
during the investigation. The Commission notes that the record indicates that the Selectee was
already in the position in a detail assignment, and Complainant has not challenged the
Selectee’s qualifications for the position. While the absence of the Selectee’s application
materials is concerning, the Commission finds that the Agency sufficiently established through
affidavit and documentary evidence that both Complainant and the Selectee were qualified for
the position at issue and the selection decision was based on the candidates’ interview
performance.
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At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency’s reasons were not the real reasons and that retaliatory animus
was a factor in its actions. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that she was subjected to reprisal as
alleged.

CONCLUSION

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 decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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
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).
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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

March 30, 2017
Date