0120141562
08-03-2016
Cassondra S.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cassondra S.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141562
Hearing No. 420201300206X
Agency No. 200106192013100343
DECISION
On March 19, 2014, Complainant filed an appeal from the Agency's April 17, 2014, final order 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).2 For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether the EEOC Administrative Judge properly issued a decision without a hearing finding that the Agency did not discriminate against Complainant on the basis of age when it did not select her for the position of a Social Worker Health Care for Homeless Veterans Coordinator.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Worker at the Agency's Central Alabama Veterans Health Care System, Tuskegee Campus in Tuskegee, Alabama. On January 4, 2012, the Agency posted a vacancy announcement for a Social Worker Health Care for Homeless Veterans Coordinator, GS-0185-12, (VA-619-12-585818-LG). Complainant submitted her application for this position.
A Human Resources Specialist (HRS) (Age 27), inadvertently omitted a requirement of an Advanced License Practice (known as "LCSW") in the announcement, and applicants who did not possess an LCSW were referred to the selecting official (SO) (Age 52). A total of 19 applicants were referred to the SO, and eight applicants were interviewed; all those interviewed had an LCSW. Complainant had a Master's degree in Social Work, but not an LCSW, and was not interviewed, or selected for the position. The selectee (S1) (Age 34) had an LCSW, and prior work experience with homeless veterans.
On January 31, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (53) when on October 25, 2012; she learned that she was not selected for the position of Social Worker Health Care for Homeless Veterans Coordinator. 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. When the Complainant did not object, the AJ assigned to the case granted the Agency's November 25, 2013, motion for summary judgment and issued a decision without a hearing on February 27, 2014.
As an initial matter, the AJ found that there was no genuine dispute with respect to any material facts, and no genuine issues as to credibility to warrant a hearing. The AJ then found that Complainant had not established a prima facie case of age discrimination because she could not show that the SO treated similarly situated applicants outside of her protected status more favorably, under the same or similar circumstances; or that the Agency acted with any discriminatory animus during the selection process by only interviewing applicants with an LCSW. The AJ also found that, even assuming Complainant had established a prima face case of age discrimination, she had not shown that the Agency's reasons were pretext for discrimination.
On March 19, 2014, Complainant filed a Motion to Vacate or Set Aside Order, Lack of Notice of Agency's Motion, Alternative Notice of Appeal with the AJ, and the Commission. On April 17, 2014, the Agency issued a final order adopting the AJ's decision. Also on April 17, 2014, the AJ denied Complainant's motion. The AJ found that Complainant's designation of representative form contained two mailing addresses, and that neither one was highlighted. Additionally, the AJ found that since the AJ's decision was forwarded to the other mailing address, the Agency's motion would have also been forwarded in the same fashion.
Complainant did not submit a separate brief in support of her appeal. On May 22, 2014, the Agency requested that the Commission affirm its final order.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that neither she, nor her attorney, received the Agency's Motion for Summary Judgment; and that there are disputed facts in this matter.
STANDARD OF REVIEW
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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
As an initial matter, we find that the Agency and the AJ did not err when sending their mailings because we find it reasonable for the Agency and AJ to use one of the two addresses listed on the Complainant's attorney's filings. Additionally, the Certificate of Service notes that the Agency's motion was emailed to Complainant's attorney. Despite Complainant's attorney's assertion that she did not receive the mailed copies, she has not alleged that she did not receive the email. While Complainant argues that there are disputed facts, she has not specified what facts are in dispute. Accordingly, we find that the AJ properly issued a decision without a hearing because we find that there are no material facts in genuine dispute.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant had established a prima facie case of age discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for not selecting her for the Social Worker Health Care for Homeless Veterans Coordinator position. The SO stated that after she received the certificate list of eligible applicants, the HRS informed her that she made a mistake, and that the certificate list included applicants without an LCSW, and that the position required an LCSW. The HRS stated that Complainant was not qualified for the position because she did not have an LCSW.
The SO stated that only those with an LCSW were interviewed for the position. The SO also stated that S1 and another applicant had the same interview scores, but when she compared their experiences, she saw that S1 had prior experience working with substance abuse, and homeless veterans; and therefore selected her.
Complainant has not shown that the proffered reasons were pretext for discrimination. In a nonselection case, pretext may be found where the complainant's qualifications are plainly superior to the qualifications of the selectee. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). In this case, S1 had the advanced license required for the position, while Complainant did not. As such, we find that Complainant did not establish that she was discriminated against on the basis of age when she was not selected.
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 order adopting the AJ's decision without a hearing finding that the Agency did not discriminate against Complainant based on age when it did not select her for the position of Social Worker Health Care for Homeless Veterans Coordinator.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
_8/3/16_________________
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 While we note that Complainant's March 19, 2014, appeal was premature, the Commission finds that the appeal is now ripe for adjudication as the Agency subsequently issued a final order on April 14, 2014.
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