[Redacted], Irene C., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 21, 2022

Appeal No. 2021003892 (E.E.O.C. Sep. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irene C.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003892 Agency No. ARFTSAM18JUN02247 DECISION On June 25, 2021, 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 May 26, 2021 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Coordinator, GS-0303-07, in the Department of Pediatrics at the Agency’s Brooke Army Medical Center at Joint Base San Antonio in Texas. Complainant’s first-level supervisor (S1) was Program Director, Adolescent Medicine Fellowship and her third-line supervisor (S3) was the Chief of Pediatrics. On July 11, 2018, Complainant filed an EEO complaint alleging the Agency discriminated against her in reprisal for prior protected EEO activity when: 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. 2021003892 2 1. On May 1, 2018, she was not selected for a position as a Health System Specialist - Practice Manager, GS-0671-11, under Job Announcement No. NCFR185248367719; and 2. On or about July 10, 2018, she was denied access to her computer program’s share drive which impaired her ability to perform her job. Claim 1 On October 3, 2017, the Agency submitted a Request to Hire document for the position of Health System Specialist, GS-0671-11. Complainant applied for the position and was one of 53 applicants referred for potential selection. The Supervisory Health Systems Specialist, Department of Pediatrics, Brooke Army Medical Center was the Selecting Official (SO) for the position. SO reviewed the applications of the 53 candidates and selected the top 10 applicants for additional review, which included Complainant. A three-person panel of SO, the Officer in Charge of Adolescent Medicine (PM2), and the Chief of General Pediatrics (PM3) reviewed the top 10 resumes and selected the top five applicants to interview. SO explained that they looked for demand management experience, utilization management, access to care, schedule management and contracting officer representatives since there are three primary care contracts the practice manager manages. SO said a large part of the position was being able to calculate and know the demands of the clinics such as what the patients are going to exert on the clinic regarding appointments, access to care, and making sure those schedules and appointments are available for the same day as well as anything in the future. SO stressed the importance of the candidates having practice management experience, which encompassed everything described above. Based on resumes, all three panel members identified the same candidate with the strongest resume; however, she was not interviewed because she withdrew her application. The applicant selected for the position (Selectee) had the second strongest resume given his practice management experience, clinical experience, supervisory manager experience, and familiarity with all the clinical systems needed. Every member of the panel acknowledged that Complainant was not among the top five applicants; therefore, she was not interviewed. Complainant alleged she qualified for the position due to her master’s degree and her active military duty experience. In addition. Complainant stated that as an employee in the Department of Pediatrics, she knew the Department’s processes, the culture, and people. Complainant believed the reasons she was not interviewed was due to the written witness statement she submitted for the EEO complaint of another employee in September 2017. SO testified that Selectee had practice manager experience in the Air Force, running five clinics in Wichita Falls for the hospital on the air force base. SO explained that Selectee understood what the job demanded in terms of demand management and access to care. 2021003892 3 Additionally, he was a civilian administrator for Tenet in Dallas for two years and had been a contracting officer representative in the Air Force. SO said Selectee had a knowledge base that would allow him to jump right in, listing his contracting officer representative experience and experience with demand management; access management; utilization management and schedule management. SO said they wanted to give Complainant consideration for the position and put her in the top 10 because she worked in the Department of Pediatrics. However, when compared to the rest of the top 10 applicants, Complainant’s resume was not as strong as the other qualified applicants. PM2 stated Complainant’s position was not directly involved in clinical operations. While Complainant was familiar with the things valued in adolescent medicine because of her experience in the adolescent medicine clinic, Complainant lacked experience in the areas of supervisory experience, familiarity with institutional metrics regarding performance, productivity, and familiarity with the complicated clinical data systems used to inform work processes. PM2 said she provided input on each of the top 10 applicants and shared her preference as to who she thought were the most experienced, and who had in-depth experience in the specific clinical systems and databases used in the position. Specifically, PM2 identified the applicants, such as Selectee, who were adept in the business of medicine metrics as well as the clinical systems they used. PM2 testified her input on Complainant’s resume was that she did not know if Complainant had any of the experience mentioned above based on her resume and PM2’s experience working with Complainant. Claim 2 On July 10, 2018, Complainant began experiencing issues accessing the Adolescent Med Program Secure Folder, which she needed to access to properly and effectively do her job. She notified the Information Technology Specialist responsible for granting access to the shared drive of the issue. Complainant alleged she did not regain access to the folder from July 10 to the date of her resignation on August 18, 2018. The IT Specialist testified that the office was undergoing a Windows 10 upgrade at the time and something went wrong that caused all employees to lose access to the shared drive, not just Complainant. She explained the issue lasted for about one week and all employees, including Complainant, regained access to the shared drive. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that Agency management subjected her to reprisal as alleged. The instant appeal followed. 2021003892 4 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”). 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, 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. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Assuming arguendo Complainant established a prima facie case of reprisal, the Commission finds that the Agency articulated legitimate, non-retaliatory reasons for their actions. In particular, regarding Claim 1, the Agency explained Complainant was not interviewed for the position because, as described above, Complainant’s experience listed in her resume did not compare with the resumes of the top five applicants referred for interviews. The panel members each highlighted the strongest resumes detailing their experience in the areas important for the position such as, among others, practice management experience, clinical experience, and the clinical systems and databases used. Additionally, the Agency expressed the need of having someone with this experience who could jump right in given the complexity of the clinical systems and databases used in the position. The panel members concurred that Selectee had practice management experience, clinical experience, supervisory manager experience, and familiarity with all the clinical systems needed. The panel members explained why Complainant’s resume did not rise to the level of the top five resumes. With respect to Claim 2, the IT Specialist stated the office was undergoing a Windows 10 upgrade at the time and something happened that caused employees to lose access to the shared drive for about a week, but that access was restored. 2021003892 5 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. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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. With regard to her non-selection claim, the Commission finds that Complainant failed to show that her qualifications for the position at issue were plainly superior to those of the Selectee. In this case, Selectee had attributes that justified his selection, and selection officials affirmed that they believed 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. Burdine, 450 U.S. at 259. Complainant has presented no evidence demonstrating that her qualifications were plainly superior or that the Agency's reasons were pretextual. Aside from Complainant’s conclusory allegations and speculations, Complainant has failed to establish that the Agency’s reasons for its actions were pretext for retaliatory animus. 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 the Agency acted on the basis of retaliatory animus. 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 and contentions on appeal, including those no specifically addressed herein, 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2021003892 6 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021003892 7 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 September 21, 2022 Date