Ingeborg B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120172844 (E.E.O.C. Oct. 25, 2018)

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

Ingeborg B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120172844

Agency No. 200H05232016105166

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 24, 2017, final
decision 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Nurse Manager,
0620, 3, at the Agency’s Nursing Service, Boston Health Care System facility in Brockton,
Massachusetts.

On October 7, 2016, Complainant filed an EEO complaint alleging that the Agency retaliated
against her based on her prior protected EEO activity under Title VII, when, on September 7,
2016, Complainant received verbal notice that she was not selected for the position of Registered
Nurse – Associate Chief of the Community Living Center / Spinal Care.

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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The pertinent record shows that Complainant had prior known EEO activity. She applied for the
position. The Human Resources Service (HR) determined that Complainant was one of the best
qualified candidates. Complainant was interviewed by a panel. The interview results established
that Complainant and the selectee were deemed the top two candidates. One panel member
recommended that Complainant be selected. The second panel member averred that she made
no recommendation. Complainant received a higher score than the selectee. The Selecting
Official (SO) selected the other candidate. The SO was also listed as a reference for the
candidate who was selected.

Because the SO did not select the top scoring candidate, HR requested that the selecting official
provide a statement as to the reasons for her decision. The selecting official provided a statement
that she believed the selectee had a “broader” range of relevant experience for the position.

Subsequent to the selection, Complainant spoke with the SO and another Agency official. The
SO apologized to Complainant regarding events that had happened in the past. Complainant
asserts that the discussion is evidence of reprisal, because the SO apologized to her about a past
experience with another individual, who was involved in her prior EEO complaint.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

Agency Decision

The Agency concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. Specifically, the Agency found that Complainant had not established a
prima facie case of reprisal because the record does not establish a causal connection between
her prior EEO complaint, four years ago, and the non-selection in this complaint. The Agency
also stated that it had great latitude in the selection of candidates for management level positions
and is not obliged to prove that the best candidate was, in fact selected. The Agency reasoned
that the selecting official believed the selectee had a “broader” range of relevant experience for
the position. Next, the Agency stated that “after an independent comparison of qualification, we
are not persuaded that [Complainant’s] qualifications, albeit impressive, are so plainly superior
as to warrant a finding of pretext.” This appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant maintains that, based on the facts and qualifications posted for the
position, Complainant had superior qualifications and more experience than the selected
candidate. Complainant also noted factual inaccuracies in the decision, because she stated that
the panel did not recommend both the selectee and Complainant for consideration, and that the
selected candidate had no experience noted on her application citing any work in Geriatrics.
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Complainant further noted that she was ranked #1, not the selected candidate, and that both
panelists recommended Complainant and the Investigator noted that Complainant received a
higher score. The record shows that Complainant also raised “an ethical issue,” which she said
was evidenced by the fact that the selecting official was named as both a personal and
professional reference on the application of the selected candidate and failed to select the best
candidate.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

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 that, 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 Dep’t of
Community 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 a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

For purposes of our analysis, we will assume that the selectee had no known prior EEO activity
and that Complainant was equally or better qualified than the person selected.2

Even assuming that Complainant established the elements of her prima facie retaliation claim,
the Agency articulated a legitimate, non-discriminatory reason for its action. The record shows
she was not selected based on the selecting official’s belief that the selectee had broader
experience relevant to the position at issue. There was no evidence that this non-selection was
due to her prior protected activity four years earlier.

2 Although the selecting official was noted as a reference for the person selected and this appears
to give the selectee an unfair advantage, this suggests pre-selection and a potential ethics
violation of the federal personnel rules and the Merit Systems Principles, rather than a violation
of Title VII.
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We are not persuaded that Complainant was so overwhelmingly more qualified to render the
stated reason untrue or that the apology regarding a prior event offers evidence that retaliation
was the true reason for this non-selection. We find, therefore, that Complainant did not offer
sufficient evidence that the stated reason was a pretext for unlawful retaliation.

For these reasons, we find that Complainant did not establish, by a preponderance of the
evidence, that she was the victim of unlawful retaliation.

CONCLUSION

Accordingly, we AFFIRM the Agency’s finding for the reasons stated herein.

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 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. 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

October 25, 2018
Date