[Redacted], Lelia D., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Oct 31, 2022

Appeal No. 2022002914 (E.E.O.C. Oct. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lelia D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022002914 Hearing No. 530-2018-00125X Agency No. 200H-0642-2017-104727 DECISION On April 25, 2022, 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 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Quality Management Specialist, Nurse-3, at the Agency’s Corporal Michael J. Crescenz Medical Center in Philadelphia, Pennsylvania. On May 12, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2022002914 2 1. On April 27, 2017, the Quality Management Director (Director) informed Complainant of an investigative report containing negative findings against her; 2. On April 27, 2017, the Director told Complainant that she engaged in collusion with an older female colleague, told Complainant that she and her colleague exhibited unprofessional behavior and complicit behavior, and those appropriate severe actions must be taken against Complainant, threatening her with progressive discipline and requiring her to meet with the Director on a frequent basis to discuss her progress; 3. On April 27, 2017, the Director ordered Complainant to move to a smaller, partially enclose office space, which was not located in Complainant's respective product line, but located immediately adjacent to the office space of a male staff member who Complainant alleged had physically assaulted her in October 2016; 4. On April 27, 2018, the Director issued Complainant an overdue and lowered Proficiency Competency Assessment; 5. On August 2, 2017, Complainant was notified in writing that she was not selected for the position of Registered Nurse-Infection Control; and 6. On October 2, 2017, Complainant was notified via email that she was not selected for the position of Registered Nurse-Infection Control. 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 3, 2019, motion for a decision without a hearing and issued a decision without a hearing on July 2, 2021. In the decision, the AJ determined that Complainant failed to show she was subjected to illegal harassment as alleged, and that there was no persuasive evidence in the record that showed discriminatory animus played a role in the Agency's decision making. Regarding her claims of non-selection, the AJ found that Complainant failed to provide any evidence which would demonstrate that she was the plainly superior selectee, or that the interview panel or screeners acted based on discriminatory animus during the selection process. In sum, taking the events that occurred as Complainant described them, the AJ found that Complainant failed to show that the Agency conduct was based on her statutorily protected classes. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). 2022002914 3 On appeal, Complainant argues that the Agency did not produce all of the documents relevant to claim 1, including email communications, essential documents during the course of the investigation, and background information regarding the investigation process and conclusions. Moreover, Complainant contends that the Agency failed to comply with proper policy procedure as to the investigation generally. Complainant argues that the investigation was a sham, set up to find fault with Complainant in retaliation for Complainant's prior EEO activity. As to the non- selections, Complainant argues that the fundamental issue is whether experience was a necessary criterion for someone who otherwise was fully qualified in all respects to meet the basic and specialized criteria for successful performance. Complainant argues she has been a Registered Nurse for over 35 years and should have been given first consideration when filling vacancies. 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. (Aug. 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 the present case, the record reflects that the AJ thoroughly considered the entirety of the record and concluded that Complainant failed to show that the Agency’s actions were discriminatory. Although Complainant contends that the Agency failed to adhere to specific policy’s and as such completed a faulty investigation, we note that Complainant has not shown that there was any discriminatory animus underlying any failure to follow policy. Despite Complainant's arguments on appeal, the record reflects that Complainant did not dispute the legitimate reason for the investigation, namely, that Complainant and a coworker made false reports against coworkers in the office. Regarding her non-selections, the record reflects that Complainant was not selected for the positions because she answered in the negative for having recent experience as an Infection Prevention practitioner. In contrast, the selected candidates fulfilled the requirement. We note that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Evtl. Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). They may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. Barney G. v. Dep't of Agric., EEOC Appeal No. 0120172111 (Nov. 29, 2018). They may even preselect a candidate as long as the preselection is not premised upon a prohibited basis. Michael R. v. Dep't of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). Upon review of the AJ’s summary judgment decision, the arguments on appeal, and the record as a whole, we find that the AJ decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. The AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. Accordingly, the AJ properly issued a decision without a hearing. 2022002914 4 We also agree that the AJ’s decision correctly identified the legal standards for Complainant to prove that she was subjected to discrimination based on age, sex, and reprisal. 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 discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing 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. 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. 2022002914 5 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. 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 31, 2022 Date