Madeleine C.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120180075 (E.E.O.C. Oct. 25, 2018)

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

Madeleine C.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120180075

Hearing No. 480-2017-00073X

Agency No. 200P-0605-2012102733

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated September 8, 2017, finding no discrimination
regarding her 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. For the following reasons,
we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse
(RN), WS-2, at Veterans Affairs Medical Center (VAMC), in Loma Linda, California. On May
22, 2012, Complainant filed her complaint alleging discrimination based on race (Black) when:

(1) On January 27, 2012, she became aware of her nonselection for the RN
Accreditation/Performance Improvement Consultant position, Announcement No. 557-
079.

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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(2) On February 8, 2012, she became aware of her nonselection for the Off Tour Supervisor
position, Announcement No. LL-11-JD-578089.

(3) On March 13, 19, and 20, 2012, she was required to take annual leave and not granted
administrative leave for training courses.

(4) On April 27, 2012, she was assigned Certified Nursing Assistant (CNA) duties.

(5) On May 14, 2012, she received a “Satisfactory” rating and not a “High Satisfactory”
rating on her exit performance proficiency.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On May 16, 2017, the AJ, after a hearing, issued a
decision finding no discrimination, which was implemented by the Agency in its final order.

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).

In this case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. Complainant worked as a RN in the midnight shift at Loma
Linda VAMC facility from September 11, 2011, until April 27, 2012, when she left the facility
and moved to the Phoenix Indian VAMC facility in Phoenix, Arizona.

Regarding claim (1), the Selecting Official (SO1) indicated that after SO1 reviewed
Complainant’s application, SO1 did not see accreditation experience on her resume, she held
nursing positions for short periods of time, and she held multiple short periods of employment
indicating her lack of stable work history. SO1 indicated that after she saw the Selectee applied
for the position, she decided not to conduct any interviews because of the Selectee’s highly
relevant experience in the key duties of the Accreditation/Performance Improvement Consultant.
The Selectee worked for SO1 for six years as a Performance Improvement Consultant when they
previously worked at Loma Linda University Healthcare.
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SO1 stated that she did not know Complainant at the time of the selection. Here, we find that
Complainant failed to show that her qualifications for the position were plainly superior to the
Selectee’s qualifications or the Agency’s action was motivated by discrimination. See Wasser v.
Department of Labor, EEOC Request No. 05940058 (November 2, 1995).

Regarding claim (2), SO2 indicated that she received a list of qualified applicants from Human
Resources and she convened a four-member interview panel. The interview panel asked eight
candidates, including Complainant, the same performance based questions. The interview
panelists indicated that Complainant did not do well during the interview and scored the lowest
of the eight candidates. Specifically, she did not address the specifics of the questions, her
answers were too vague, and she did not weave her experience into the answers to show that she
could perform the essential duties of an Off Tour Supervisor. SO2 then decided to interview the
top four candidates from the interview panel’s scores. SO2 ultimately chose the top two but both
withdrew from the position. SO2 then decided not to make a selection and decided to
reannounce the position.

The position was reannounced under Announcement No. 644105 on April 13, 2012.
Complainant did not reapply for this position. The AJ noted that Complainant, instead, applied
for a position with the Phoenix Indian Medical Center, Indian Health Service, Phoenix, Arizona.
She was selected for this position on April 24, 2012, and left the Loma Linda VAMC facility.
SO2 did not make a selection under the reannouncement and she again chose to reannounce it
one more time.

Regarding claim (3), S1 indicated that the training courses, i.e., a Steven Covey “Organizational
and Planning” and an “Introduction to Working on Excel Program,” were not required courses
for her staff RNs. S1 did not grant administrative leave to any of her staff to attend these
courses. Complainant acknowledged that she did not request administrative leave because she
knew S1 would not approve it and instead she requested annual leave which was approved.
Complainant failed to show that there were any similarly situated employees not in her protected
groups who were treated differently under similar circumstances.

Regarding claim (4), Complainant claimed that she was routinely assigned to CAN duties such
as answering call lights, emptying urinals and charting the output, bathing and changing patients,
taking vital signs, assisting with bed baths, and sitting with patients. The AJ indicated that both
S1 and Complainant’s second level supervisor credibly testified that all RNs, including
Complainant, in the facility were expected to perform all duties related to patient care, including
CAN and LVN (License Vocational Nurse) duties when necessary. Complainant failed to show
that there were any similarly situated employees not in her protected groups who were treated
differently under similar circumstances.

Regarding claim (5), the AJ stated that S1 credibly testified that a rating of “Satisfactory” was a
very acceptable rating for a RN and for her to justify a higher rating she would need evidence
that Complainant performed “something out of the ordinary,” for example, “in-service peer
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training for colleagues” or doing something that was not expected for an RN on a daily basis.
Performing LVN and CAN duties were not examples of “doing something out of the ordinary.”

Based on the foregoing, the AJ found and we agree that Complainant failed to carry her burden
and establish unlawful discrimination under the disparate treatment concerning her claims. We
find that Complainant failed to show that the Agency’s proffered reasons were pretextual. Upon
review, we find that the AJ’s factual findings of no discriminatory intent are supported by
substantial evidence in the record.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, the Agency’s final order finding of no discrimination is AFFIRMED because the AJ’s
decision is supported by substantial evidence.

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 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. 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