0120140252
09-01-2016
Machelle L.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Machelle L.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140252
Hearing No. 570-2012-00395X
Agency No. 200406882011102516
DECISION
On October 18, 2013, Complainant filed an appeal from the Agency's September 24, 2013, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing finding that Complainant failed to establish that she was subjected to discrimination on the bases of age (49), disability, national origin (Nigerian), and reprisal for prior EEO activity when: (1) from March 2009 to the present management failed to pay her a night shift differential upon her return from medical leave; (2) from August 25, 2008 to the present management assigned her to the higher level duty of wound care at the Registered Nurse (RN) level; and (3) from August 25, 2008 to the present management failed to promote her from Licensed Practical Nurse (LPN) to Registered Nurse (RN).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-6 Licensed Practical Nurse at the Agency's VA Medical Center facility in Washington, DC. The following facts are set forth in the AJ's Decision without a hearing: Complainant was hired by the Agency in July 2000. Her national origin is Nigerian. On or about January 11, 2008, Complainant suffered an on the job injury. As a result of the injury Complainant developed limited restrictions on her ability to lift, pull and push with her right hand and arm. She could only lift, pull or push up to 10 lbs., intermittently.
From 2002 until her injury, Complainant worked from midnight to 7:30 a.m. When she returned to work on March 13, 2009, she began working the day shift exclusively. Her hours were 7:30 a.m. to 4:00 p.m. Upon her return, the Agency therefore began to pay Complainant without the night shift differential. Complainant conceded that she was assigned to the day shift upon her return to work because of the restrictions of her injury. Complainant inquired about the change in pay and her first line supervisor (S1) sought guidance on paying Complainant the night differential pay. She was never given authorization to pay Complainant the night differential after she returned and was assigned the day shift.
Before returning to work, Complainant discussed with S1 the types of tasks she could perform, and the two agreed that wound care would be an appropriate assignment. The functional statement for the GS-6 LPN position states that LPNs are expected to "perform dressing changes using sterile and or aseptic technique." Therefore, the record reflects that performing dressing changes is a function of wound care.
According to Agency policy, Complainant was educationally ineligible for an RN position because she did not complete RN studies at an appropriately accredited institution. Pursuant to the VA handbook, RNs must have completed studies at an institution accredited by the national League of Nursing Accrediting Commission (NLNAC) or Commission on Collegiate Nursing Education (CCNE). Complainant completed her nursing at Radians College, which was not accredited by either commission.
On June 29, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of "Issues Presented" above. 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 October 24, 2012 motion for a decision without a hearing (supplemented on February 15, 2013), and issued a decision without a hearing on September 4, 2013. 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.
On appeal Complainant contends the AJ erred in determining that she failed to present sufficient evidence to warrant a hearing in the instant matter. Complainant asks that the Commission reverse the decision and issue a decision in her favor, or alternatively remand the case for a hearing on the merits.
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 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).
After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given a comprehensive statement of undisputed facts, she was given an opportunity to respond to the motion, supplemental motion, and statement of undisputed facts, and she had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII, ADEA or Rehabilitation Act case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must 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. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies that its decisions were motivated by Complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, Complainant must demonstrate that: (1) she is an "individual with a disability"; (2) she is "qualified" for the position held or desired; (3) she was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
Assuming, arguendo, that Complainant is a qualified individual with a disability, pursuant to the Rehabilitation Act, and that she established a prima facie case of discrimination on the bases of national origin, disability, age, and reprisal, the AJ concluded that she did not show that the Agency's reasons for the actions were pretextual. We find that the Agency articulated legitimate, non-discriminatory reasons for each action it took, and that Complainant failed to demonstrate any conduct on the part of the Agency was based on discriminatory animus.
Specifically, with respect to the allegation regarding pay of the night differential, the record reflects that S1 inquired, but never received, authorization to pay Complainant the differential once she returned on the day shift. In fact, S1 was advised by the Chief Financial Officer that "it might be illegal to give night shift differential when an employee is working on the day shift." With respect to Complainant's allegations surrounding her assignment of wound care, the functional statement for the LPN position states that she would be responsible for all types of LPN care, not excluding wound care. Regarding Complainant's final allegation regarding the Agency's failure to promote her to RN, it is clear from the record that Complainant did not meet the educational requirements as prescribed in the Agency's handbook for promotion to an RN position. The Commission has long held that an 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 Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
Complainant's proffer of an alleged comment made by S1 regarding her "suffering from old age" without more is insufficient to establish discriminatory animus. We concur with the AJ's determination that at most the comment constitutes a stray remark, unaccompanied by any concrete discriminatory action.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ properly issued a decision without a hearing finding that Complainant failed to demonstrate she was subject to discrimination on the bases of age (49), disability, national origin (Nigerian), and reprisal for prior EEO activity when: (1) from March 2009 to the present management failed to pay her a night shift differential upon her return from medical leave; (2) from August 25, 2008 to the present management assigned her to the higher level duty of wound care at the Registered Nurse (RN) level; and (3) from August 25, 2008 to the present management failed to promote Complainant from Licensed Practical Nurse (LPN) to Registered Nurse (RN). The Agency's final order adopting the decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
__9/1/16________________
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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