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

Equal Employment Opportunity Commission

Feb 7, 2022

Appeal No. 2021000629 (E.E.O.C. Feb. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wanda S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000629 Agency No. 2003-0623-2019101226 DECISION On October 31, 2020, 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 February 10, 2020 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events at issue, Complainant was an applicant for employment with the Agency. On March 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age when, on November 13, 2018, the Agency rescinded its tentative job offer of employment for a Registered Nurse position advertised under Vacancy Announcement No. CBDR-10186691-18-KR. The Agency accepted the complaint and conducted an investigation. The investigation showed that Complainant (age 61) applied for the Registered Nurse-Triage position advertised under Vacancy Announcement No. CBDR-10186691-18-KR. On June 5, 2018 a Human Resource Specialist (HR1) sent Complainant a tentative offer for the position. 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. 2021000629 2 The job offer was contingent upon the results of a background check, which included verifying Complainant’s California nursing license and work history in VetPro (a credential verification system). HR1 testified that the Agency rescinded Complainant’s job offer on November 13, 2018, after the Assistant Director (RMO1) reviewed Complainant’s work history. HR1 testified that the Agency had also sent tentative offers for the Registered Nurse position to four other selectees under the same vacancy announcement. HR1 testified the job offers to the other selectees were not rescinded, and that the selectees’ ages were 55, 67, 51, and 42. Complainant testified that the Agency informed her that her offer was rescinded for “failure to complete pre-employment requirements.” Complainant explained that there was a delay in obtaining her California nursing license so she “assume[d]” that was the reason the Agency rescinded her tentative job offer. Complainant’s representative added that the Agency asked Complainant for “40 years’ worth of licenses,” to fill out a VetPro application, and document all periods of unemployment, but “expecting a 61-year old woman to remember every time of employment and unemployment and have records for every license . . . over 40 years is where . . . age discrimination comes in.” Complainant’s representative stated that the Agency expected “things from older workers that would not be an issue if she was a 30-something whose records are all online.” RMO1 retired from the Agency on October 31, 2018. The record does not contain a sworn statement from RMO1, but there is an email correspondence in the record, from October 29, 2018, where RMO1 expressed her concerns with Complainant’s work history. RMO1 states that she had reviewed Complainant’s work history which showed: In the last 5 years [Complainant] has worked at one job for three months, then has a gap in employment . . . [followed by] another job for 3 months and . . . gap in employment. She [then] worked another job for 6-months [followed by] . . . a gap in employment. This inconsistency is concerning, and we need to determine whether [Complainant] is going to be dependable enough for our organization. RMO2 (65 years old) testified that she reviewed Complainant’s file in VetPro and concurred with RMO1’s decision to rescind Complainant’s job offer. RMO2 stated that Complainant’s age had nothing to do the Agency’s decision. RMO2 explained that she was unaware of Complainant’s age because “nothing in the VetPro has any age information.” 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). 2021000629 3 In the final decision (FAD) issued on February 10, 2020, the Agency determined age discrimination as alleged was not proven in this matter. The instant appeal followed. 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 the 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). See also, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142 (applying McDonnell Douglas analysis to ADEA claim). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, an examination of the record shows that, during the investigation of the complaint, the responsible Agency officials articulated a legitimate, nondiscriminatory reason for the decision to not hire Complainant. 2021000629 4 The Agency witnesses explained that Complainant’s tentative job offer was rescinded because a routine background check revealed that Complainant had a recent history of leaving a job after only working a few months. Agency officials stated that they were concerned with Complainant’s inconsistency given her work record, and that they wanted an employee who was “dependable.” This is a sufficient articulation of a reason not to hire Complainant that is unrelated to her age. The burden now shifts to Complainant to demonstrate that the Agency's proffered reason was a pretext designed to mask its true discriminatory motivation. A complainant can show pretext in two ways, “either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer's proffered explanation is unworthy of credence.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). After careful consideration of the record, we conclude that Complainant has failed to prove, by a preponderance of the evidence, that the proffered reasons for rescinding her job offer was a pretext designed to mask discrimination. While not dispositive, we note again that all four of the eventual selectees for the position were in the protected age group and at least two (one older than Complainant) were close to her age. Complainant has not shown that her work history was wrongly characterized by the Agency or provided any other evidence, beyond her own conjecture, that her age influenced the Agency’s decision. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final 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). 2021000629 5 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. 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. 2021000629 6 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 7, 2022 Date