Hannah C. Gatling, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 12, 2009
0120073288-r (E.E.O.C. Feb. 12, 2009)

0120073288-r

02-12-2009

Hannah C. Gatling, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Hannah C. Gatling,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120073288

Hearing No. 490-2006-00191X

Agency No. 200L-0350-2006100823

DECISION

On July 17, 2007, complainant filed an appeal from the agency's June

26, 2007 final order concerning her equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 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 AFFIRMS the agency's final order.

BACKGROUND

The record reflects that in November 2005, the agency posted two vacancy

announcements for a Veterans Service Representative, GS-0996-07,

in Little Rock, Arkansas. The agency posted the first, Vacancy

Announcement No. MPA-394-06-350-03-25-USAJ, on the USA Jobs website.

This vacancy announcement indicated that the area of consideration

for the position was limited to Status Candidates (reinstatement and

transfer); those qualified under the Veterans Reemployment Act (VRA);

veterans eligible under VEOA; 30% or more disabled veterans; veterans

eligible under Chapter 31; and those who were "VA CTAP or Interagency CTAP

eligible (within the commuting area)." The second, Vacancy Announcement

No. VB101624, was posted through the Delegated Examining Unit (DEU).

This vacancy announcement involved a competitive hiring process that

was open to the public. Complainant submitted applications, including

documentation regarding her disability, for the position under both

vacancy announcements. In December 2005, complainant learned that she

was not placed on either of the candidate referral lists.

On February 6, 2006, complainant filed an EEO complaint alleging that

she was discriminated against on the basis of disability (brain injury,

fibromayalgia, dystonia) when, on December 21, 2005, complainant was

made aware that her name was not on the certificate of referral for

two vacancy announcements, Veterans Service Representative Vacancy

Announcement Nos. MPA-394-06-350-03-25-USAJ and VB101624.

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

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

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. On November 10, 2006, the agency submitted a

motion for a decision without a hearing. On May 31, 2007, the AJ

issued a decision without a hearing finding that complainant failed

to establish a prima facie case of disability discrimination. The AJ

found that complainant "has not shown that other applicants who were

not veterans and who were not disabled were treated any more favorably

than she was." Additionally, the AJ found that "[c]omplainant really

seems to be complaining about the veterans' preference which was given.

However, being a 'non-veteran' is not a protected group under any statute

enforced by the Commission." The agency subsequently issued a final

order adopting the AJ's finding that complainant failed to prove that

she was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant argues that the AJ erred in finding no

discrimination. Complainant argues that the agency used "illegal

procedures and policies," including applying veterans' preference(s)

in a discriminatory manner, to exclude her from consideration for

the position in question. In response, the agency argues that the AJ

properly issued a decision without a hearing and urges the Commission

to affirm its final order.

ANALYSIS AND FINDINGS

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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)

(providing that an administrative judge's "decision to issue a decision

without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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").

We must first 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

To prevail in a disparate treatment claim such as this, 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).

Assuming arguendo that complainant established a prima facie case

of disability discrimination,1 we find that the agency articulated

legitimate, nondiscriminatory reasons for its actions. A Human Resources

Specialist submitted an affidavit in the record stating that complainant

was not placed on the candidate referral list for Vacancy Announcement

No. MPA-394-06-350-03-25-USAJ because "she did not meet the eligibility

requirements for the recruitment authorities outlined in the vacancy

announcement." With respect to Vacancy Announcement No. VB101624, the

Chief of the DEU stated that complainant was not placed on the candidate

referral list because they received "a sufficient number of compensable

disabled veterans for the certificate of eligibles." He noted that

"[b]y law, compensable veterans float to the top of our competitive

delegated examining certificates. In addition, preference-eligible

veterans cannot be passed over to select non-veterans."

Complainant now bears the burden of proving by a preponderance of

the evidence that the agency's articulated reasons were a pretext for

discrimination. Complainant can do this directly by showing that the

agency's proferred explanation is unworthy of credence. Burdine, 450

U.S. at 256. We find that complainant failed to provide any evidence

of pretext in the record. On appeal, complainant provides no evidence

of pretext and does not present any information that would suggest that

the agency's actions were motivated by discriminatory animus towards

complainant's disability.

CONCLUSION

Summary judgment was appropriate in this case because no genuine issue

of material fact is in dispute. Complainant failed to present evidence

that any of the agency's actions were motivated by discriminatory

animus towards her. We discern no basis to disturb the AJ's decision.

Accordingly, after a careful review of the record, the agency's final

order is AFFIRMED.

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 (S0408)

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 (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

February 12, 2009

Date

1 For purposes of analysis only, we assume, without finding, that

complainant is an individual with a disability,

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0120073288

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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