U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elda S.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120160145 Hearing No. 520-2015-00054X Agency No. 200H05142014101384 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency's August 27, 2015 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 Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was both a former employee and a job applicant at the VA Bath Medical Center in Bath, New York. On February 22, 2014, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of disability (disabled veteran with service-connected lower back problems) and reprisal (prior protected activity) when, on December 11, 2013, she became aware that was not selected/hired for the position of Women Veterans Program Manager, under vacancy announcement number VN061001984627. After its investigation into the complaint, 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 Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. In reaching her decision, the AJ found that the record developed during the investigation established the following undisputed facts: On October 2, 2013, Complainant voluntarily submitted a letter of resignation from her position as Staff Nurse at the Wellsville Community Based Outpatient Clinic, part of the VA Bath Medical Center, where she had worked since October 1, 2007. Complainant's final day of employment with the Agency was October 26, 2013. In early December 2013, Complainant applied for the position of Registered Nurse-Women Veterans Program Manager ("Program Manager") within the VA Bath Medical Center. Complainant was among the ten applicants who met the basic qualifications for the position. Of the ten, only Complainant and one other candidate held a master's degree in Nursing. While not required, the Vacancy Announcement indicated a preference for candidates with either a master's degree in Nursing or a related field, or a doctoral degree in Nursing. The other eight candidates held either a bachelor's degree or an associate's degree in Nursing. On December 2, 2013, Complainant interviewed for the position before a three-person panel ("P1," "P2," and "P3"). The panel assessed the candidates by assigning points to their responses to interview questions. Complainant was ranked eighth out of the 10 candidates, even though her 10-point veteran's preference was included in the Panel's calculations. P1, who was also the selecting official, stated that Complainant "interviewed poorly and could not answer all of the questions completely." P1 also explained that she sought a candidate with experience in women's health issues, including gynecological and labor and delivery, and found the selectee's five years of experience in these fields superior to Complainant's experience. Likewise, P2, found that Complainant lacked specific experience in the "full spectrum" of women's health services. P2 awarded Complainant only 14 out of a possible 40 points. In contrast, P2 awarded the selectee 34 points, finding her far more experienced. Complainant also scored poorly with P3, who felt that Complainant exhibited a lack of professionalism during her interview by, among other things, making negative comments about the Agency as a prior employer. On December 11, 2013, Complainant was notified that she was not selected for the Program Manager position. Based on this evidence, the AJ determined that the Agency provided legitimate, nondiscriminatory reasons for Complainant's non-selection. Namely, the panel found the selectee had more relevant experience than Complainant in women's healthcare, which is what they were seeking for the position. While acknowledging Complainant's argument that her qualifications were "plainly superior" because she met more of the requirements of the position and had a higher level of education than the selectee, the AJ still found Complainant unable to overcome the Agency's legitimate nondiscriminatory reasons. Specifically, the Panelists explained that the selectee had more of the specialized experience in the "full spectrum of women's health services" and Complainant had lower scores and interviewed poorly. Alternately, the AJ dismissed Complainant's complaint for failure to establish a prima facie case of reprisal and disability discrimination, finding that she presented no evidence of a causal nexus between the Agency's action and her membership in a protected class. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS 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. (rev., 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). The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Berry v. United States Postal Serv., 01A10971 (Dec. 28, 2001) citing Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). We further note that simply adopting an agency's statement of facts, constitutes an improper credibility determination about the various parties' explanations, thereby determining the truth of matters that should not have been decided until after a hearing was held. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (Jul. 11, 2003). In the instant case, the interview notes and sworn affidavits provided by two of the three panelists, including the selecting official, contradict their previous written accounts about Complainant's abilities and performance just several months earlier. Complainant contends that the panelists, particularly P1 and P2, were not only aware of her qualifications, but had supervised Complainant over the years and previously provided highly positive feedback. ROI 171-174. Complainant states that a year prior to the interview, "rather than file an EEO claim, [she] engaged in mediation" with both P1 and P2 out of frustration that she was not selected for a management position. Cp. Ex. 8. P1 was Complainant's supervisor for the Women Veterans' Health Program from 2012 through 2013. Cp. Ex. 8. P2 was Complainant's second line supervisor from November 2008 through Complainant's departure from the Agency in October 2013. ROI 126. Complainant's annual Proficiency Report for 2013, signed by P2, awarded her the highest possible rating, "Outstanding" on nursing practice, interpersonal relationships, and overall" based on "frequent daily contact" and "frequent observations of work results" ROI 171. Complainant's prior two Proficiency Reports awarded her the second highest rating "Highly Satisfactory" in all three categories. Cp. Ex. 9. Upon review of the panelists' interview notes for Complainant, we agree that there is a marked divergence between Complainant's performance as an employee and her interview ratings on similar skills. For instance, all three panelists rated Complainant a "1" out of 4 for the "Ethics" category of the score sheet. However, Complainant's performance rating was "outstanding" in the "Practice" element, which encompassed, among other things, "Ethics." ROI 170. Complainant's 2013 Proficiency Report, signed by P2, included a specific example where she reported "issues" with a provider to leadership, resulting in that provider's dismissal. ROI 170. Complainant then "provided follow up for over 400 Veterans seen in the clinic during the time the provider was assigned" (e.g. rescheduling labs and consults, calling and assisting patients to ensure their requests to the provider were met). ROI 170. Complainant was also appointed to the Nurse Professional Standards Board in 2013. ROI 171. The "Practice" element also identifies multiple instances where Complainant worked with individuals in other facilities and collaborated and created processes of communication with facilities, such as nursing homes where patients resided to enhance communication, providers of multiple disciplines, and describes how Complainant established multiple internal processes for tracking resources, maintaining up to date records, and tracking patient care and provider services, among other things. ROI 171. Additionally, Complainant had community experience, having provided care, case management, and the Community Based Outreach Clinic ("CBOC") and assisted management with implementation of the Patient Aligned Care Team ("PACT"). We note that the panelists all identify "community" experience as a reason for choosing the selectee, yet this was not taken into consideration in Complainant's interview score sheets. ROI 111, 117. Likewise, the Panel's stated reason for the selection was the selectee's knowledge of the "full spectrum of women's health," yet it is unclear what that entails for this position, and it is unclear that the selectee's experience reflects the "full spectrum of women's health" or "extensive experience in women's health issues." ROI 118, 119, 128. We note that Complainant's resume indicated that she had worked as the "Woman's Health Liaison" during her employment with the Agency. Panelists also described the selectee as "self-driven" and indicated that she had provided examples where she went "above and beyond in the nursing field." However, based on the Proficiency Report signed by S2, these terms could just as easily describe Complainant. ROI 111, 171. Complainant's resume, which the panelists were to take into consideration as part of the application package also indicates Complainant's experience, including that she "collaborated with internal and external customers to improve clinic organizational performance," was the "Woman's Health Liaison," and was a trainer for all VAMC employees of preventative management of disruptive behavior. ROI 176. In her affidavit, P1 provided that her only reason for not selecting Complainant was based on statements Complainant allegedly made during the interview, which are not specified in the record. ROI 111. P2 stated that Complainant did "poorly" during the interview, commenting that she interviewed Complainant in other positions, and Complainant previously "did much better." ROI 129. P2 elaborated, stating that, among other things, Complainant "had difficulty with expressing issues with resource utilization, data analysis and particularly with standards of professional practice and experience with accreditation agencies." ROI 129 This explanation contradicts Complainant's 2013 Proficiency Report, which P2 signed several months prior to conducting the interview. ROI 171-174. We note the conspicuous absence of the selectee's interview notes in the record, although they were provided by Complainant. Cp. Ex. 14. We see an additional credibility issue where all three panelists testify that they were not aware of Complainant's disability. ROI 109, 112, 118, 128, 130. Yet, on appeal, Complainant provides documentation that she applied for the 10-point veteran's preference, which she asserts identified her "disabled veteran" status on her application. Cp. Ex. 5. She also provides evidence that P1 was aware of her disability in 2012, having inappropriately accessed Complainant's medical records while Complainant was on extended leave recovering from surgery related to her disability. Cp. Ex. 5. Among these documents is a signed statement by P1 that she accessed Complainant's medical records on July 13 and 20, as well as August 2 and 10, 2012. Cp. 5. Additionally, Complainant contends that management was aware of her disability as she submitted a form describing her physical limitations and there were "numerous jobs [she] would not be able to do... [such as] heavy lifting... walking [or] standing for a long period of time." ROI 97. She also alleges that she had "several discussions" about her disability with both P1 and P2 during her tenure with the Agency, and received accommodations such as an ergonomic chair and use of FMLA as needed. Cp. Ex. 5, 8. Were we to believe Complainant's version of events and draw justifiable inferences in her favor, as required when determining whether summary judgment is appropriate, we conclude that a reasonable fact-finder could find for Complainant. The hearing process is intended to be an extension of the investigative process, designed to "ensure that the parties have a fair and reasonable opportunity to explain and supplement the record and to examine and cross-examine witnesses." See EEOC Management Directive 110, Aug. 5, 2015 at 7-1; see also 29 C.F.R. §§ 1614.109(d) and (e). We conclude that the credibility of the witnesses is at issue, and that it was therefore improper for the Administrative Judge to credit management's testimony while depriving Complainant of the chance to cross examine the agency's witnesses. See e.g. Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (Jul. 11, 2003) (judgment as a matter of law should not have been granted to the agency due to many unresolved issues requiring assessment as to the credibility of various management officials in light of the evidence submitted by complainant); Bang v. United States Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998) other citations omitted; see also, e.g. Complainant v. Dep't of the Interior, EEOC Appeal No. 0120112380 (Mar. 24, 2015) (reversing summary judgment without issuing a finding on the merits, where the evidence at issue was appropriate for cross-examination, elaboration and credibility determinations). While this decision does not address the merits of Complainant's claims, we must conclude that summary judgment should not have been granted in the instant complaint. CONCLUSION Upon careful review of the AJ's decision and the evidence of record, we VACATE the Agency's final action adopting the AJ's summary judgment decision, and REMAND the matter to the Agency in accordance with this decision and the ORDER below. ORDER The Agency is directed to submit a copy of the complaint file to the appropriate EEOC Hearings Unit within fifteen (15) calendar days of the date of this decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 January 31, 2018 __________________ Date 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 0120160145