01A11866
06-14-2002
Linda F. Jones, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Linda F. Jones v. Department of Veterans Affairs
01A11866
June 14, 2002
.
Linda F. Jones,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A11866
Agency No. 98-0931
Hearing No. 230-99-4129X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final order.
BACKGROUND
The record reveals that complainant, a Secretary, Nursing Education, GS-5,
at the VA Medical Center in Detroit, Michigan facility, filed a formal EEO
complaint on February 23, 1998, alleging that the agency had discriminated
against her on the bases of color (Black) and age (D.O.B. 8/19/57)
when she was not promoted to the position of Secretary, GS-6.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to established a prima facie
case of color or age discrimination because complainant did not identify a
similarly situated employee outside her protected class who was upgraded
or promoted. The AJ found that complainant in her response to the
agency's interrogatories admitted that she could not identify anyone
else not in her protected class that was promoted to a Grade 6.
The AJ also found that the record reveals that a desk audit was performed
which resulted in confirming that complainant was not performing Grade
6 level work. The AJ noted that the desk audit found that complainant
was performing at a Grade 4 level, and management assisted complainant
in rewriting the job description to ensure that complainant could keep
her Grade 5.
The AJ noted that complainant argued that she was reassigned to a
secretarial position in which the former secretary was rated as Grade 6.
The AJ also noted that complainant asserted that she should have been
upgraded to a Grade 6 when she was reassigned. However, the AJ found that
complainant was not reassigned to the same secretarial position but to
a secretarial position with different duties than the former secretary.
For instance, the AJ found that complainant did not have supervisory
duties as the former Grade 6 secretary did. The AJ further found that the
former Grade 6 secretarial position was located in the Nursing Service,
whereas complainant was placed in a secretarial position that was located
in a newly created Nursing Section.
On appeal, complainant makes essentially the same arguments she made
before the agency. The agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
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). 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
(2000).
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. Where
employment terms, conditions, privileges, or benefits are at issue,
complainant may establish a prima facie case by demonstrating that
she belongs to a statutorily protected class, and that she was treated
differently than employees outside of her protected group with respect
to those terms, conditions, privileges, or benefits. See Orr v. Tennessee
Valley Authority, EEOC Request No. 05930311 (March 11, 1994).
In this case, the record reveals that complainant cannot identify
a similarly situated employee outside of her protected class who was
upgraded or promoted. The record reveals that complainant admitted that
she could not identify anyone else not in her protected class that was
promoted to a Grade 6. The record also shows that when complainant was
questioned why she thought that her color and age was the reason for the
agency's actions, she stated that she did not really know and that she
had to put something down. We find that complainant has not established
a prima facie case of discrimination on the bases of race or color with
regard to the agency's failure to promote her to Grade 6.
Assuming arguendo, that complainant had established a prima facie case
of discrimination, we shall next consider the agency's explanation
for its actions. The record reveals that a desk audit was conducted on
complainant's position to determine if it should be rated as a Grade
6 position. A questionnaire was completed detailing the major duties of
complainant's secretarial position. The record also reveals that the desk
audit resulted in a determination that complainant's position should be
rated as a Grade 4. The record further reveals that the position did not
meet the definition of a Grade 5. We find that the agency articulated
legitimate, nondiscriminatory reasons for not promoting complainant to
Grade 6.
We find that complainant has not established, by a preponderance of
the evidence, that the agency's stated reasons for its actions were
pretextual. Complainant did not refute the agency's argument that the desk
audit resulted in a finding that the position should be rated a Grade
4 nor did she put forth evidence that the desk audit was conducted in a
discriminatory manner. Therefore, we find that complainant has failed to
show that she was discriminated against on the bases of her color or age.
In conclusion, after a de novo review of the record, we find that there
are no genuine issues of material fact. The Commission finds that the AJ
correctly decided that summary judgment was appropriate in this case, and
the AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, we AFFIRM the agency's final
decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
June 14, 2002
__________________
Date