0120072612
10-23-2009
Joanne Costanzo, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joanne Costanzo,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072612
Hearing No. 340-2005-00405X
Agency No. 200N-0664-2004102621
DECISION
On May 9, 2007, complainant filed an appeal from the agency's April
12, 2007 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. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission affirms the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Registered Nurse at the agency's La Jolla Medical Center in San
Diego, California.
On September 2, 2004, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of disability (anxiety disorder)
and in reprisal for prior protected EEO activity when:
1. on March 22, 2004, the Associate Chief of Staff of Nursing and Patient
Care Services (ACS) denied complainant's request to attend an Association
of Peri-Operative Registered Nurses (AORN) conference;
2. on March 27, 2004, the ACS denied complainant's request for education
leave for the AORN conference;
3. on March 27, 2004, the ACS denied complainant's request for tuition
reimbursement for the AORN conference; and
4. by letter dated April 8, 2004, complainant was informed that the
Chief of Surgical Services (CSS) did not select her for the Clinical
Nurse Reviewer Position.
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). Complainant timely
requested a hearing. The AJ held a hearing on August 3, 2006,1 and issued
a decision on September 28, 2006.
The AJ found the following facts: Complainant was a member of AORN.
AORN was scheduled to have a conference beginning on March 22, 2004.
Prior to attending, complainant submitted the conference attendance
forms and a form requesting tuition reimbursement to the Associate Chief
Nurse of Education (ACN-Ed). At the same time, complainant submitted
a request for leave to attend the conference to her supervisor (S1).
S1 testified that, at that time, she did not believe complainant would
be permitted an authorized absence to attend the conference, because
complainant was no longer working in the operating room. As a result,
S1 granted complainant annual leave instead to attend the conference.
A leadership council was formed to determine who would attend the
conference because many nurses requested to attend. In a memorandum dated
February 4, 2004, the ACN-Ed advised complainant that funding for tuition
was limited to staff who were currently working in the operating room,
and that only the operating room nurses would be permitted to attend
the conference. The ACN-Ed denied complainant's request to attend the
conference. On or about March 4, 2004, complainant was reassigned to the
Mission Valley Clinic. Complainant sent a copy of the request she made
to S1 to attend the conference to her new supervisor at the clinic (S2).
S2 denied complainant's request for annual leave. S1 testified that S2
told her that she denied complainant's request for annual leave because
complainant was recently assigned to the clinic and was needed there.
However, S2 learned that complainant had already been granted the annual
leave, and apologized for her error. The record reflects that complainant
paid the fees to attend the AORN Conference and attended the conference
from March 22 to March 24, 2004.
On March 5, 2004, a vacancy announcement was posted seeking candidates
for the RN Clinical Nurse Reviewer position. Complainant applied on
March 19, 2004. Complainant was among approximately eight candidates
whose applications were forwarded to the Chief of Surgery Service (CSS),
the selecting official. The CSS, along with the Administrative Officer
of Surgical Services, (AOS) reviewed the applications. No interviews
were held. The CSS did not selected complainant for the position.
By letter dated April 8, 2004, a Human Resource Specialist informed
complainant that she was not selected for the position.
The AJ found that complainant failed to establish that her anxiety
disorder substantially limited any major life activity. As such, the
AJ found that complainant failed to show that her impairment was such
that she was entitled to the protections of the Rehabilitation Act.
With regard to complainant's retaliation claim, the AJ found that
complainant failed to establish a prima facie case of retaliation because
she failed to show that the CSS or AOS knew of her prior EEO activity.
Nevertheless, the AJ found that even assuming, arguendo, that complainant
established a prima facie case, the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, with regard
to claims 1, 2, and 3, the AJ found that the agency determined to limit
attendance and reimbursement of the tuition for the conference to those
nurses who work in the operating room. Because complainant did not work
in the operating room, complainant's request to attend the conference on
education leave with tuition reimbursement was not granted. With regard
to claim 4, the AJ credited the testimony of the CSS that the selectee:
... clearly had outstanding skills, [was] very analytical, and was
able to accumulate data, analyze data and process it, which is a very
important part of the job description that we had put forth for this
particular position. She also is a very professional individual that
again, I was very comfortable with. And again, after seeing that she was
a candidate and knowing her, her skills and experience, I felt that she
was a perfect candidate. And again after consulting with human resources,
I made the selection again without interviewing.
The AJ found that the CSS testified that he had personally observed
the selectee's work regarding the Blood Transfusion Committee and the
Performance Improvement Management Service, which was directly related
to the type of work for the Clinical Nurse Reviewer position. The CSS
believed that the selectee had proven to him that she could do the
work that the facility needed her to do. The AJ found that complainant
failed to establish that the agency's proffered reasons for its actions
were a pretext for discrimination or retaliation. Accordingly, the AJ
found that complainant failed to establish by the preponderance of the
evidence that she was discriminated or retaliated against as she alleged.
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 contends that the AJ failed to address her argument
that she was also regarded as disabled. Complainant argues that she
established that the agency was motivated by discriminatory animus when
it failed to grant her permission to attend the AORN conference, failed
to grant her education leave to attend the conference, and failed to
reimburse her tuition to the conference. Complainant argues that the
agency failed to articulate a legitimate, nondiscriminatory reason for
not selecting her for the position at issue. Complainant also argues
that she established that any reasons offered by the agency were a
pretext for discrimination.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as these, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming arguendo that complainant established a prima facie case of
disability discrimination and retaliation, we find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
The record reflects that with regard to claims 1, 2, and 3, that
complainant was not permitted to attend the AORN conference and was not
reimbursed for the conference fees because she was no longer working in
the operating room. HT at 396. Further, with regard to claim 4, the
record shows the CSS stated that he was familiar with the selectee's work
and her skills were such that she was the best candidate for the position.
HT at 225-226.
Because we have determined that the agency's legitimate, nondiscriminatory
reasons were supported by substantial evidence in the record, we turn
to whether complainant established that the agency's proffered reasons
were a pretext for discrimination. The record reflects that with
regard to claims 1, 2, and 3, complainant argues that she needed to
attend the conference more than others because she had not worked in the
operating room since 2003, and that she would have been able to convey
the information to the other nurses. We find that complainant failed to
proffer sufficient evidence to show that the agency's proffered reasons
for not permitting her to attend the conference or pay for the conference
was a pretext for discrimination or retaliation. Although complainant
argues that she was not permitted to work in the operating room because
of her disability, we find that this does not sufficiently call into
question the agency's reasons for permitting only operating room nurses
to attend the conference. Accordingly, we find that the AJ's finding
that complainant failed to establish she was discriminated or retaliated
against with regard to claims 1, 2, and 3 was supported by substantial
evidence in the record.
With regard to claim 4, the record reflects that complainant believed she
was more qualified than the selectee for the position. In nonselection
cases, pretext may be found where the complainant's qualifications
are demonstrably superior to the selectee's. Bauer v. Bailar, 647
F.2d 1037, 1048 (10th Cir. 1981). Ultimately, the agency has broad
discretion to set policies and carry out personnel decisions, and should
not be second-guessed by the reviewing authority absent evidence of
unlawful motivation. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259; Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997). Although complainant contends that
the selectee was not qualified for the position at issue because she did
not possess the minimum educational requirement of a bachelor's degree,
the CSS testified that he was unaware at the time of the selection
that the selectee did not hold a bachelor's degree. HT at 213, 220.
We find that the selectee's lack of a bachelor's degree at the time of
the selection is not sufficient to show that the CSS was motivated by
discriminatory animus because he was unaware that the selectee did not
qualify for the position. Further, we find that complainant failed to
show that her qualifications were demonstrably superior to those of the
selectee. The record reflects that the selectee held a position which
required her to use analytical skills and manage data. HT at 234-244.
Complainant did not show that she had similar qualifications. The CSS
also testified that he was familiar with the selectee's prior work and
believed that the selectee had proven that she could perform the type
of work she would be required to perform in the position. HT at 225.
Accordingly, we find that the AJ's finding that complainant failed to show
she was discriminated or retaliated against is supported by substantial
evidence in the record.
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 finding no discrimination or
retaliation.
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 tends 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
October 23, 2009
Date
1 The record reveals that two of the witnesses testified via telephone
during the hearing over the agency's objections. The Commission has
held that testimony may not be taken by telephone in the absence of
exigent circumstances, unless at the joint request of the parties and
provided specified conditions have been met. Louthen v. United States
Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006). Because the
facts of this case pre-date Louthen, we determine the propriety of
conducting the hearing telephonically by considering the totality
of the circumstances. Here, it is clear that exigent circumstances
existed with regard to one witness, as she was ill. With regard to
the other witness, the previous agency representative did not object to
the telephonic testimony of this witness, although a different agency
representative at the hearing objected. Nonetheless, the record does
not contain issues of witness credibility that may have been impacted by
the taking of testimony telephonically. Under these circumstances, even
if it is assumed that the AJ erred by taking testimony telephonically,
the Commission finds that her action constituted harmless error.
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0120072612
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120072612