[Redacted], Kimberly L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 23, 2023

Appeal No. 2022001715 (E.E.O.C. Feb. 23, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kimberly L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022001715 Hearing No. 430-2021-00309X Agency No. 2004-0659-2020102526 DECISION On February 9, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 19, 2022 final order 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 Registered Nurse (RN) at the Agency’s Charlotte Health Care Center in Charlotte, North Carolina. On May 25, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when on June 25, 2020, Complainant was non-selected for the position of Gynecologist Nurse Practitioner, under Vacancy Announcement No. CBTA-10696133-RLK.2 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. 2 The Agency initially dismissed the complaint, which included several additional allegations. In Kimber L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020005410 (Feb. 9, 2021), the Commission reversed the Agency’s dismissal of only the instant claim and remanded the matter for further processing. 2022001715 2 On January 13, 2020, the Agency posted a vacancy announcement for a Nurse Practitioner in the Gynecology Department of the Agency’s VA Medical Center in Salisbury, North Carolina. Complainant applied for the position and on February 3, 2020, was informed that she was not among the most highly qualified candidates and her application was not referred to the selecting official/hiring manager. However, she was informed that if there was a request for additional candidates, her application would be reviewed again for possible referral. On June 24, 2020, Complainant received an email informing her she was not selected for the Nurse Practitioner, Gynecology position. The Agency received 42 applications for the position of Nurse Practitioner-Gynecology, which were initially screened by a Human Resources Specialist (HR Specialist 1). HR Specialist 1 reviewed the applications and forwarded 15 of the 42 applications to the Gynecology Service Line Chief, Department of Surgery at the Salisbury VA Medical Center. In an email to the Gynecology Service Line Chief and the Chief of Surgery, HR Specialist 1 wrote that she would only be sending the resumes of applicants with Gynecology experience. When the Agency announced the position, it included a Functional Statement stating: “Preference will be given to providers who are currently active as a Nurse Practitioner in a Gynecology clinic for the past five or more years, have recent Agency experience, and can independently perform LARC, Colposcopy, and endometrial biopsy.” The top four applicants were referred for an interview with a four-person panel. Following the interviews, the second-highest ranked candidate (Selectee) was selected for the position after the highest-ranked candidate declined the position. The Gynecology Service Line Chief explained that Selectee had superior combined experience in Gynecology service within the Agency, was able to perform all of the skillset outlined in the Functional Statement and had urogynecology experience with the ability to offer pessary fitting and PTNS services for incontinence as additional services. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. The AJ determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. More specifically, the Agency selected a candidate that met the specific qualifications requested in the vacancy announcement, which Complainant did not, i.e., that preference would be given to applicants “who are currently active as a Nurse Practitioner in a Gynecology clinic for the past five or more years, have recent VA experience, and can independently perform LARC, Colposcopy, and endometrial biopsy.” The AJ also found that Complainant failed to show that her qualifications, as stated on her resume, were plainly superior to those of the selected applicant. Therefore, aside from Complainant’s bare assertions, the Complainant failed to present any evidence that the Agency’s actions were pretext for discrimination. Accordingly, the AJ found Complainant was not subjected to discrimination as alleged. 2022001715 3 The Agency issued a final order fully adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Complainant has not presented evidence showing that the Agency was motivated by unlawful discriminatory animus regarding the allegation at issue. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2022001715 4 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. 2022001715 5 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 February 23, 2023 Date