0120170297
07-20-2018
Leota F.,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leota F.,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120170297
Hearing No. 420-2014-00161X
Agency No. 2003-0520-2013-104127
DECISION
On October 21, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 22, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision which found that Complainant did not demonstrate that she was subjected to discrimination as she alleged.
ISSUE PRESENTED
The issue presented is whether the AJ erred in granting the Agency's Motion for Summary Judgment which argued that Complainant was not subjected to race discrimination when she was not promoted/boarded to a GS-6 Advanced Medical Support Assistant position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant (MSA), GS-5 at the Agency's VA Medical Center in Biloxi, Mississippi. In late 2012, all MSA's were converted from Title 5 employees to Hybrid Title 38 employees. Each MSA had to be boarded by a Professional Standards Board (PSB). The PSB's were to assign grades to each position filled by an MSA. In order to get boarded as a GS-3 through GS-6, each employee had to submit a qualification sheet that described, among other things, the duties being performed and the experience/education of the employee. In addition to the qualification sheet, the PSB reviewed the recommendation from the employees' supervisor. Complainant was eligible for the GS-6 position because she had a minimum of one year experience as a GS-5 but her supervisor recommended that she be boarded at the GS-5 level. Complainant maintained that she was not promoted to the GS-6 position because of discrimination. Moreover, Complainant noted that a mistake had occurred in the boarding process and another employee's education information had been attached to her Board Action Form. Once the error was brought to the supervisor's attention, he asked Complainant for her information again so that he could correctly upload the information. Complainant supervisor maintained, however, that his mistake had no bearing on the GS-5/GS-6 determination because education only played a role in determining whether a candidate was eligible for GS-3 through GS-5 levels.
Complainant also argued that a coworker was treated more favorably than she was when she was boarded at the GS-6 position. Complainant indicated that management had an issue with her because they thought she was "too pretty to work." The coworker, according to Complainant, was rated higher because she was not as pretty and slim as Complainant. Complainant believed her supervisor harbored animosity against her because of race by explaining "well, she's Caucasian and I'm African-American."
On October 3, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American and Native American) when on June 26, 2013, she was not boarded to a GS-6, Advanced Medical Support Assistant position.
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 Administrative Judge. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's April 30, 2015, motion for a decision without a hearing. The AJ found that there were no material facts at issue and no genuine issues of credibility that would warrant a hearing on the merits of Complainant's allegations of discrimination.
The AJ issued a decision without a hearing on September 15, 2016. The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency subjected her to discrimination as alleged. Specifically, the AJ found that the evidence did not establish a prima facie case of disparate treatment. Notwithstanding, assuming arguendo that Complainant established a prima facie case of race discrimination, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant's supervisor recommended that she be boarded at the GS-5 level. The AJ found that other than disagreeing with the Agency's decision to board her at the level that her supervisor advised, she did not provide any evidence which showed that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ erred in finding for the Agency as there were substantial errors involved with her boarding application. Complainant also contends that other employees were treated more favorably than she was. Complainant indicates that she believes her race was a factor because some of her coworkers have asked about her ethnicity.
In response, the Agency request that the AJ's decision be affirmed.
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 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. 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).
In the instant case, we agree with the AJ that based on the record there are no material facts in dispute and nor are there questions of credibility involved in this case.
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 the 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 his 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).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we agree with the AJ that even if we assume arguendo that Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant's supervisor recommended that she be boarded at the GS-5 level. Complainant attempted to show that the Agency's nondiscriminatory reason was pretext for discrimination by stating that she thought discriminatory animus was involved because she was black and her supervisor was white, and because management and coworker asked about her ethnicity. She also argued that some of her coworkers discriminated against her because she was pretty and slim and they were not. We agree with the AJ that these arguments do not in any way show that discriminatory animus was involved with the Agency's actions. We agree that Complainant did not demonstrate that the Agency's nondiscriminatory reasons were pretext for discrimination.
Further, with respect to Complainant's contentions on appeal, we note that both Complainant and the Agency agree that there was a mistake made with regard to her boarding action. We find, however, that Complainant did not show that discriminatory animus was involved with her boarding cover page being erroneously attached to a coworker's application. The record shows that once the mistake was pointed out, management was immediately willing to correct the mistake. We agree with the AJ, that the bottom line is that Complainant was boarded as a GS-5 because her supervisor recommended it.
CONCLUSION
Accordingly, the Agency's final order which fully implemented the AJ's decision which found that Complainant did not prove that she was subjected to discrimination is AFFIRMED.
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
_7/20/18_________________
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.
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