Emma L. Blathers, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, (Veterans Health Administration), Agency.

Equal Employment Opportunity CommissionDec 10, 2009
0120073432 (E.E.O.C. Dec. 10, 2009)

0120073432

12-10-2009

Emma L. Blathers, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, (Veterans Health Administration), Agency.


Emma L. Blathers,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

(Veterans Health Administration),

Agency.

Appeal No. 0120073432

Agency No. 200105392006102559

DECISION

On July 31, 2007, complainant filed an appeal from the agency's July 19,

2007 final decision 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. The appeal is deemed timely and is

accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,

the Commission MODIFIES the agency's final decision.

ISSUES PRESENTED

(1) Whether the agency appropriately determined that complainant was not

subject to discrimination when she was not selected on three separate

occasions.

(2) Whether the agency properly dismissed complainant's ongoing

non-selection claim.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Nursing Assistant, GS-5, at the agency's Lyons, NJ facility,

where she had been employed for 27 years. On July 9, 2006, complainant

filed an EEO complaint alleging that she was discriminated against on

the bases of race (African-American), sex (female), and age (58) when:

(1) on April 13, 2006, she was not selected for the position of Nursing

Assistant; (2) on May 11, 2006, she was not selected for the position of

Patient Services Assistant; (3) on July 10, 2006, she was not selected

for another Nursing Assistant position; and (4), she experienced multiple

non-selections from 1994 to 2006. The agency dismissed claim (4) because

complainant had not contacted a counselor within 45 days of the alleged

discriminatory action.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC 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). In its final decision, the agency affirmed the Office of

Resolution Management's dismissal of complainant's fourth claim on the

bases that: (i) complainant had not contacted a counselor within 45 days

of the nonselection; and (ii) for failing to state a claim for which

relief can be granted. With respect to the three remaining claims,

the agency found: (i) complainant had not established a prima facie

case of gender or race discrimination; and (ii) while complainant had

established a prima facie case of age discrimination, she failed to offer

any evidence showing that the agency's legitimate, non-discriminatory

reasons for its actions were pretextual.

CONTENTIONS ON APPEAL

Neither the agency nor complainant submitted briefs on appeal of the

Agency's Final Decision.

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 EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").

Claim (4) Procedural Dismissal

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO counselor

within forty-five (45) days of the date of the matter alleged to be

discriminatory or, in the case of a personnel action, within forty-five

(45) days of the effective date of the action. The Commission has adopted

a "reasonable suspicion" standard (as opposed to a "supportive facts"

standard) to determine when the forty-five (45) day limitation period is

triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852

(February 11, 1999). Thus, the time limitation is not triggered until

a complainant reasonably suspects discrimination, but before all the

facts that support a charge of discrimination have become apparent.

In the instant case, complainant presented no persuasive evidence that

she did not reasonably suspect discrimination regarding her ongoing

non-selections until the 45 days that preceded her initial contact with a

counselor on May 5, 2006. Complainant has not shown that she was unaware

of the time limitation period for seeking EEO counseling, nor has she

shown that she was prevented from seeking timely contact for any reasons.

We also note that non-selections are, like hirings, promotions, awards,

"discrete actions," which are "not actionable if untimely filed. See

National R.R. Passenger Corp. v. Morgan, 122 S. Ct. 2061 (2002).

Accordingly, we AFFIRM the dismissal of claim (4).

To prevail in a disparate treatment claim, complainant must satisfy the

three-part evidentiary scheme fashioned by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially

establish a prima facie case by demonstrating that she was subjected

to an adverse employment action under circumstances that would support

an inference of discrimination. Furnco Construction Co. v. Waters, 438

U.S. 567, 576 (1978). Proof of a prima facie case will vary depending

on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804

n. 14. The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,

complainant must prove, by a preponderance of the evidence, that the

agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

Under the ADEA, it is "unlawful for an employer . . . to fail or refuse

to hire or to discharge any individual or otherwise discriminate against

any individual with respect to her compensation, terms, conditions,

or privileges of employment, because of such individual's age." 29

U.S.C. � 623(a)(1). When a complainant alleges that she has been

disparately treated by the employing agency as a result of unlawful

age discrimination, "liability depends on whether the protected trait

(under the ADEA, age) actually motivated the employer's decision."

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)

(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,

[complainant's] age must have actually played a role in the employer's

decision making process and had a determinative influence on the

outcome." Id.

Claim (1)

With respect to complainant's contentions that she was discriminated

against with respect to race and gender, we find that complainant has not

established a prima facie claim of discrimination. The record shows that

with respect to claim (1), all selectees were African-American females.

Therefore, complainant has not identified similarly situated individuals

from outside of her protected classes of race (African-American) and

gender (female) who were treated more favorably nor has she provided

any other evidence that would create an inference of discrimination

based on race or gender. Accordingly, complainant has not satisfied

the requirements of stating a prima facie claim of race and gender

discrimination.

With respect to complainant's allegations of age discrimination,

we find that complainant has established a prima facie claim of

discrimination. Complainant has shown that: (i) she is an employee over

40 years of age; (ii), she experienced an adverse employment action;

(iii) she applied for a position which she was found qualified; (iii) the

selectees were younger than herself. Therefore, complainant has shown

that similarly situated employees outside of her protected class were

treated more favorably. Accordingly, since complainant has established

a prima facie case of age discrimination, the burden shifts to the agency

to show legitimate, non-discriminatory reasons for its actions.

The agency contends that complainant was not selected because she

received an application review score of 36 points, nearly 30 points

lower than the selectees, who received application scores of 64, 65, and

65 respectively. The agency maintains that the scores were based on the

respective applicant's experience and the ability to articulate specific

competencies. In this regard, the record indicates that the agency

employed objective, standardized procedures to calculate the scores.

Accordingly, we find that agency has offered a non-discriminatory,

legitimate reason for its action. In response, complainant offers no

evidence showing pretext. Therefore, with regard to claim (1), we find

that complainant has not shown that she was discriminated against. The

agency's finding of no discrimination regarding claim (1) is AFFIRMED.

Claim (2)

With regard to claim (2), we find that complainant has not shown a

prima facie claim of race discrimination, as she has not identified

any similarly situated individuals outside her protected class who

was selected for the Patient Services Assistant position. However,

we find that complainant has presented a prima facie claim of

gender discrimination because the record reveals that similarly

situated male employees were selected for the position. Further,

we find that complainant has established a prima facie claim of age

discrimination under the ADEA because all selectees were younger than

complainant. Accordingly, the burden next shifts to the agency to

show that its actions were supported by legitimate, non-discriminatory

reasons.

In this regard, the agency contends that complainant was not offered

an interview because her application packet omitted: (i) KSAOs; (ii)

a resume; (iii) and references. In contrast, the record shows that

the selectees all submitted complete application packages. Therefore,

we find that the agency has presented a legitimate, nondiscriminatory

reason for its action. Complainant now bears the burden of proving by

a preponderance of the evidence that the agency's articulated reasons

were a pretext for discrimination. To this end, complainant submits

no information that the agency's reasons were pretextual. Accordingly,

we find that complainant has not shown that she was discriminated

against on account of race, gender or age with respect to claim (2).

The agency's finding of discrimination regarding claim (2) is AFFIRMED.

Claim (3)

We find that complainant has failed to establish a prima facie case of

race or gender discrimination with respect to claim (3), as the record

reveals that no individuals outside of complainant's protected classes of

race (African-American) or gender (female) were selected; however, we find

that complainant has stated a prima facie claim of age discrimination,

as both of the selectees were younger than complainant at ages 52 and

29 respectively. Therefore, the burden shifts to the agency to show

that its actions were based on legitimate, non-discriminatory factors.

The agency has failed to meet its burden in showing that its action was

based on legitimate, non-discriminatory factors. The Supreme Court

has described this burden as being met "if the defendant's evidence

raises a genuine issue of fact as to whether it discriminated against

[complainant]," and that "[t]o accomplish this, the defendant must

clearly set forth, through the introduction of admissible evidence, the

reasons for the [complainant's] rejection." Burdine, 450 U.S. at 254-55.

Moreover, it must "frame the factual issue with sufficient clarity so

that [complainant] will have a full and fair opportunity to demonstrate

pretext." 450 U.S. at 255-256; Parker v. United States Postal Service;

EEOC Request No. 05900110 (April 30, 1990) (citing Burdine, 450 U.S. at

256) see also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993),

citing U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,

716 (1983) and Burdine, 450 U.S. at 256. While the agency's burden of

production is not onerous, it must nevertheless provide a specific, clear,

and individualized explanation for the treatment accorded the affected

employee. Lorenzo v. Department of Defense, EEOC Request No. 05950931

(November 6, 1997).

We find that the agency has not articulated an adequate reason

explaining the discrepancy in treatment between complainant and the

selectees, and thus, has not rebutted complainant's prima facie case

of age discrimination. To this end, no agency selecting officials were

available to testify with respect to claim (3) nor did the agency submit

any specific argument or evidence regarding how its selection decision

was made. Instead, the agency's sole assertion consisted of a perfunctory

statement made by an official, via telephone, that applicants without

experience in "acute med/surg" were not required to be interviewed.

However, this same individual acknowledged that she was not actually

involved in the screening process or the interview phase of the selection

process. Moreover, another agency official, a Human Resource Specialist,

stated that complainant was found to be qualified for the position,

but she was unaware of the reason that complainant was not interviewed.

On balance, therefore, the agency provided no objective bases for its

selection decision. Instead, the agency merely provided a cursory

description of the decision-making process, without indicating how

it applied in its decision not to refer complainant for an interview.

Accordingly, we find that the agency has failed to articulate a specific,

clear, and individualized explanation for its actions, and consequently,

complainant was denied a fair opportunity to demonstrate pretext. See

Young v. Department of the Treasury, EEOC Request 05940517 (October 13,

1995).

CONCLUSION

After a review of the record in its entirety, the Commission AFFIRMS

the agency's final order with respect to claims (1), (2) and (4).

With respect to claim (3), we REVERSE the agency's determination that

complainant did not establish age discrimination. The agency will comply

with the Order below.

ORDER

Within sixty (60) days of the date this decision becomes final the agency

is ordered to:

1. Offer complainant the position of the GS-5, Nursing Assistant,

or a substantially equivalent position, at the Charleston, South Carolina

location, retroactive to the date of her non-selection, July 10, 2006.

Complainant shall have fifteen (15) days from the date of the offer

to accept or decline the position. If complainant should decline the

agency's offer of a position, the date of her rejection shall be the

end date for any back pay due complainant.

2. The agency shall determine the appropriate amount of back pay,

with interest, and other benefits due complainant since July 10, 2006,

pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar

days after the date this decision becomes final. The complainant shall

cooperate in the agency's efforts to compute the amount of back pay and

benefits due, and shall provide all relevant information requested by

the agency. If there is a dispute regarding the exact amount of back

pay and/or benefits, the agency shall issue a check to the complainant

for the undisputed amount within sixty (60) calendar days of the date

the agency determines the amount it believes to be due. The complainant

may petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

3. The agency shall provide eight (8) hours of EEO training to the

responsible management officials regarding their responsibilities under

EEO laws.

4. The agency shall consider taking appropriate disciplinary action

against the responsible management officials. 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).

5. The agency is ordered to post at its Charleston, South Carolina

offices copies of the attached notice. Copies of the notice, after being

signed by the agency's duly authorized representative, shall be posted

by the agency within thirty (30) calendar days of the date this decision

becomes final, and shall remain posted for sixty (60) consecutive days,

in conspicuous places, including all places where notices to employees are

customarily posted. The agency shall take reasonable steps to ensure that

said notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 (M1208)

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), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. 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 (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

____12/10/09______________

Date

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0120073432

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120073432