U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Regina M.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120170567 Agency No. 200H04052015103266 DECISION On December 2, 2016, Complainant, prior to a final decision being issued, filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a). The Agency subsequently issued a final decision on March 28, 2017, 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 MODIFIES the Agency's final decision. ISSUES PRESENTED Whether Complainant established that she was discriminated against based on race (Black) when she was not selected for the position of RN (Medical-Surgical); and whether she established that the Agency should be sanctioned for failing to conduct its investigation and issue its final decision within the regulatory timeframes. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for a position at the Agency's White River Junction VAMC facility in White River Junction, Vermont. On May 27, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on race (Black) when the Agency failed to refer her for consideration for the position of RN (Medical-Surgical). Complainant applied but was never notified that she was considered qualified for the position. She was never interviewed for the position. Complainant found out that she was not selected when she called the Agency's Office of Human Resources on April 27, 2015. Complainant contends that she was qualified for the position because she has a background in podiatry, critical care, public health nursing, mental health nursing and ministry. She contends her medical surgery experience comes from doing medical surgery during critical care cases. She contends that she has been turned down for many Agency jobs for which she applied. The Agency contends that Complainant was not selected because she only met the minimum qualifications for the position advertised. The Nurse Manager of the 1 West Medical/Surgical Unit stated that she was unaware of Complainant's race. She stated that the Agency was seeking applicants with the most experience in Medical/Surgery nursing. The Agency had hired several new nurses and needed more experienced nurses to guide the younger nurses. Complainant's application was reviewed, but she was not hired because she had a limited surgical background. The nurse selected for the position had 12-plus years of experience in Medical Surgery, including leadership roles. At the conclusion of the investigation, the Agency by return requested mail, sent Complainant a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge on or about November 3, 2015. Complainant requested a final decision December 4, 2015. In accordance with Complainant's request, the Agency issued a final decision on March 28, 2017 pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Although the Agency issued a FAD, as requested, it was issued more than 13 months after Complainant's request. The record also indicates that on November 15, 2016, Complaint, through a representative, again requested a final decision. CONTENTIONS ON APPEAL The Agency submitted a brief explaining why Complainant was not selected for the position, that the selecting official was unaware of Complainant's race, and that Complainant was not discriminated against based on her race. Complainant's Representative requests that the Agency be sanctioned for its failure to conduct its investigation within 180 days and to issue a final decision within 40 days of her request. She asks that the Agency's final decision be rescinded, and that a hearing before an Administrative Judge be held because she was not represented at the time she requested a final decision. STANDARD OF REVIEW 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"). ANALYSIS AND FINDINGS At the outset, we find no justification for setting aside the Agency's final decision in this matter based on the fact that Complainant was not represented at the time she knowingly and voluntarily decided to waive an administrative hearing and to request a final decision. Disparate Treatment Claim In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII cases alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256. The Agency articulated a legitimate, non-discriminatory reason for its selection decision. The Agency sought an experienced nurse for the purpose of assisting a number of less experienced nurses hired by the Agency. Complainant had little experience as a surgical nurse. Because there was no face to face interview, the selecting official denied knowing Complainant's race. Complainant has provided no evidence to demonstrate that the reason articulated by the Agency is a pretext for discrimination. Accordingly, we find that Complainant did not establish discrimination. Violation of EEOC's Part 1614 Regulation The record indicates that Complainant requested a final decision on December 4, 2015. EEOC Regulation 29 C.F.R. § 1614.110(b) provides that "[t]he agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision from the agency . . . ." Here the final decision was not issued until March 28, 2017, more than a year after the request. The Agency has not provided a reason for the late issuance of the final decision. Therefore, the Commission finds that the Agency did not comply with its obligation to issue a final decision in accordance with the time frames set forth at 29 C.F.R. § 1614.110(b). As noted by the Commission in Mach v. Dep't of Defense, EEOC Appeal No. 0120080658 (Nov. 30, 2010), "the procedures contained in the Commission's regulations are no more or no less than the necessary means to eliminate unlawful employment discrimination in Federal employment." Accordingly, we find that a sanction in this case is appropriate. Sanctions Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in "tailoring" a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007). In the case at hand, we find that the Agency failed to comply with EEOC's regulations in this case, and did not show good cause for its noncompliance, when it issued its untimely final decision. We also note that, regarding the fourth factor, the effect on the integrity of the EEO process should not be underestimated when tailoring a sanction. Cox v. Soc. Sec. Admin., EEOC Appeal No. 0720050055 (Dec. 24, 2009). "Protecting the integrity of the 29 C.F.R. Part 1614 process is central to the Commission's ability to carry out its charge of eradicating discrimination in the federal sector." Id. The Commission must ensure that all parties abide by its regulations and orders. Based on the specific facts of this case, we find that the most appropriate sanction to address the Agency's conduct is to order the Agency to: (1) provide training to its EEO personnel who failed to comply with our regulatory timeframes; (2) consider taking disciplinary action against these EEO personnel; and (3) pay attorney fees, if any, incurred for filing the appeal in this case. Our decision to sanction the Agency in this matter will effectively emphasize to the Agency the need to comply with Commission orders in a timely manner, as well as ensure that future Agency investigations are adequately developed for adjudication in accordance with regulatory timeframes. 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 finding of no discrimination based on race. The Agency's final decision, however, is MODIFIED in accordance with this decision and the ORDER below. ORDER Unless otherwise indicated, the Agency is ordered to complete the following remedial actions within one hundred and twenty (120) days of its receipt of this decision: 1. The Agency shall provide training to its management officials, in the Office of Employment Discrimination Complaint Adjudication located in Washington, D.C., regarding their responsibilities concerning case processing. 2. The Agency shall consider taking appropriate disciplinary action against the management officials responsible for its failure to comply with the Commission's regulations. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 3. As a sanction, the Agency, if applicable, shall provide Complainant attorney's fees for filing this appeal in accordance with the procedures set forth below in Paragraph H. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 9/6/18__________________ 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 0120170567