0120122153
10-12-2012
Lillian Arroyo, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Lillian Arroyo,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122153
Hearing No. 510-2010-00028X
Agency No. 200I06722009104820
DECISION
On April 3, 2012, Complainant filed an appeal from the Agency's February 29, 2012, 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 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Psychiatrist at the Agency's Medical Center facility in San Juan, Puerto Rico.
On October 22, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (48 and 49 years old at the time of the incidents) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. on August 18, 2009, Complainant was notified that she was not selected for the position of Chief of Psychiatry under announcement number 2009-169-JH;
2. on or about September 21, 2009, the Chief of Psychiatry, (CP: age unspecified) informed Complainant that, effective October 19, 2009, she would be moved from a private office and into an office that she would have to share with other psychiatrists; and
3. Complainant's November 2, 2009 request to have her performance rating for FY 09 changed to outstanding was not granted until on or about February 2, 2010.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency's November 10, 2010 motion for a decision without a hearing and issued a decision in favor of the Agency on February 15, 2012. Specifically, the AJ initially found that Complainant failed to establish a prima facie case of nonselection based on age because both Complainant and the Selectee (S: 40 years old at the time of the incident) were over the age of 40. The AJ further found that, assuming Complainant established a prima facie case of age discrimination, the Agency articulated a legitimate nondiscriminatory reason for its action and that Complainant failed to establish that the Agency's reason was a mere pretext for discrimination. With regard to the remaining two claims, the AJ found that the actions were insufficiently severe to constitute discriminatory harassment.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The instant appeal followed. On appeal, Complainant argues that the AJ erred in issuing a decision without a hearing. Complainant first argues that she successfully established a prima facie case of age discrimination when she was not selected for the position even though both Complainant and S were over 40 because Complainant was 49 years old at the time of the nonselection while S was 40 and an age difference of 9 years is sufficient to state a claim of age discrimination when Complainant and the comparator are both over 40. Complainant next argues that the record contradicts the AJ's finding that Complainant failed to establish that her qualifications were demonstrably superior to those of S. Complainant also argues that the selection panel responsible for selecting S contained no psychiatrists and hence was not competent to judge the qualifications of the candidates for the position of Chief of Psychiatry, and that one panel member was biased in favor of S because they were both members of another committee.
With regard to the remaining two claims, Complainant argues that the AJ erred in finding that Complainant had not engaged in prior EEO activity and erred in analyzing both claims under a harassment analysis. Complainant argues that she was retaliated against after she wrote to the Director to voice her concerns about the selection process and age discrimination, and hence the office relocation occurred close enough in time after she wrote the letter to support an inference of reprisal. Complainant further contends that she established that the Agency's articulated reason for its action was pretextual. With regard to the delayed change to her evaluation, Complainant argues that the ongoing delay caused her emotional harm and thus was severe enough to constitute harassment.
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.
Nonselection.
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For a 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 Construction Corp. v. Waters, 438 U.S. 567 (1978).
To establish a prima facie case of disparate treatment on the bases of age Complainant must show that (1) she is a member of a protected class; (2) she was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) she was treated differently than similarly situated employees outside her protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (Apr. 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (Jan. 9, 1998); Trejo v. Social Secur. Admin., EEOC Appeal No. 0120093260 (Oct. 22, 2009).
Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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 Center v. Hicks, 509 U.S. 502, 519 (1993).
The AJ found initially that Complainant failed to establish a prima facie case of age discrimination when she was not selected for the position of Chief of Psychiatry because both Complainant and the selectee were part of the same protected group (over 40). We note, however that U.S. Supreme Court has held that a complainant may still claim age discrimination when both the complainant and the comparative are both over 40 as long as the comparative is substantially younger than the complainant. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (holding that in age cases, the comparative need not be outside the protected group, i.e., under 40, but must be substantially younger than Complainant); Hammersmith v. Social Secur. Admin., EEOC Appeal No. 01A05922 (March 6, 2002) (while there is no bright-line test for what constitutes "substantially younger," that term has generally been applied to age differences in excess of five years). Consequently, we agree that Complainant failed to establish a prima facie case of age discrimination because the comparative employee, within the same protected age group as Complainant, was not "substantially younger" within the meaning of Consolidated Coin Caterers.
The AJ further found, however, that the Agency articulated legitimate, non-discriminatory reasons for the selection decision made. The record shows that the vacancy announcement for the position in question required, among other things, applicants to submit evidence of their competence in "leadership, administration, quality improvement and risk management," as well as involvement in research and teaching. Six candidate, including Complainant, were determined to be qualified for the position, and were referred for an interview by a panel of three utilizing the Performance Based Interview (PBI) process. The panel consisted of the Chief of Internal Medicine, the Chief of Audiology and the Assistant Chief of Social Work Services. The panel asked each of the candidates the same twelve questions during the interview and then rated and ranked the candidates based on their answers. The eventual selectee was the highest ranked candidate.
The AJ then determined that Complainant failed to prove that the Agency's proffered reasons for the selection were a pretext designed to mask discrimination, and found that the facts showed that both Complainant and S were equally qualified for the position. Complainant argues that, in fact, her qualifications were demonstrably superior to those of S and that the AJ's finding to the contrary is not supported by the record. The AJ determined that "the position at issue required the applicants to provide evidence of 'leadership, administration, quality improvement and risk management'. Arguably, [S]'s three years in Agency management define her as better qualified for the position at issue." AJ's Decision, p. 14. Complainant argues that the record only indicates that S held 18 months of management or supervisory experience, not three years. We note, however, that the record shows that S had about 18 months experience as a Psychiatry Ambulatory Services Supervisor from February 2008 until the date of her application but she also held the positions of Clinical Director of first, the Partial Hospitalization Program, from January 2003 to January 2004, and then the Inpatient Unit, from January 2004 to June 2005. See Report of Investigation (ROI), Exhibit C4, p. 20. Given the title of "Director," for both positions we find that the AJ's finding that S had "three years in Agency management" to be supported by substantial evidence.
Complainant argues on appeal that she had more supervisory or management experience than S, and that:
[F]rom 1994 to 2000 [Complainant] was the Outreach Program Coordinator of the Psychiatry Service of the [Agency] and was involved in reviewing incident reports, was in charge of Mortality and Morbidity reports for tort claims; from 2000 to 2004 was the Coordinator of the Mental Health Clinic and Mental Health Primary Care Programs and was the Chairperson of the Performance Improvement Committee and served in the same capacity in the Clozapine treatment committee; from 2005 until present is a member of the Institutional Review Board (human studies committee); from 2005 to 2006 was a Staff Psychiatrist at the Psychiatric Intervention Center, and from 2006 until present she is the Consultation and Liaison Staff Psychiatrist.
Complainant's Appeal Brief, p. 13.
The record confirms that Complainant's application included the above information. See ROI, Exhibibit C4, p. 11. We note, however, that titles such as "Coordinator" or "Committee Chairperson" are not clearly indicative of supervisory/managerial positions. Accordingly, we do not find that Complainant raised a sufficient question over her qualifications that would require resolution through a hearing.
We further note that Complainant also argues that the selection panel responsible for selecting S contained no psychiatrists and hence was not competent to judge the qualifications of the candidates for the position of Chief of Psychiatry, and that one panel member was biased in favor of S because they were both members of another committee. Even if this were true, these facts do not create an inference that age discrimination played a role in the disputed selection decision.
Office Move
Complainant alleges reprisal when she was made to move to a different office. Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Administration, EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas v. Green, 411 U.S. 792 (1973) at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, and Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of her protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). The Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998).
The AJ found that there was no evidence that Complainant had engaged in prior EEO activity, but Complainant stated in her affidavit that after going through the interview process for the Chief of Psychiatry position, on August 19, 2009 she wrote a letter to a management official complaining, among other things, about her concerns of age bias in the selection process. See ROI, Exhibit B1, p. 11. Complainant averred "I was informed by . . . my direct supervisor, that I had to move to a new office on September 9, 2009 approximately 20 days after I wrote the letter protesting about the discriminatory and unfair process applied in the selection of new chief of Psychiatry Service." We therefore find that Complainant engaged in protected EEO activity. The AJ next found that the action was insufficiently severe to state a valid claim of harm. We note, however, that using a disparate treatment analysis, the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation). Under such an approach, we find that being made to move to an allegedly less favorable office arguably is enough to likely deter Complainant or others from engaging in protected activity.
We therefore find Complainant established a prima facie claim of reprisal. The AJ, however, determined that the evidence of record, showed that the Agency provided a legitimate nondiscriminatory reason for its action. Specifically, additional funding had been received for Mental Health Services and new offices were being constructed, which necessitated a number of employees moving into different spaces. In September 2009, Complainant was moved into the new office for the program in which she worked - the Consultation Liaison program. While there was initially some indication that Complainant might have to share the office space, in October 2009, Complainant was advised that she would not have to share the space with any other employee. AJ's Decision, p. 5. The evidence of record supports the AJ's determination in this matter that Complainant failed to prove that she was placed in a different office in retaliation for suggesting that age discrimination played a part in her non-selection for the Chief position.
Delayed Changes to Performance Evaluation
Following a review of the record we find no basis to disturb the AJ's ruling that this matter fails to state a claim because we find that the relatively brief delay in obtaining the favorable change to Complainant's performance evaluation is not the type of action that is reasonably likely to deter Complainant or others from engaging in protected activity. While Complainant maintains that she incurred emotional harm from the delay, we note that the Commission has long held that where an allegation fails to render an individual aggrieved, the complaint is not converted into a cognizable claim merely because complainant alleges physical and/or emotional injury. See Larotonda v. United States Postal Service, EEOC Appeal No. 01933846 (March 11, 1994).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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 12, 2012
__________________
Date
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0120122153
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122153