0120092702
01-20-2012
Mildred A. Taylor, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Mildred A. Taylor,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092702
Hearing No. 440-2008-00096X
Agency No. 200J-0556-2007102334
DECISION
On June 5, 2009, Complainant filed an appeal from the Agency’s May
12, 2009, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Telephone Advice Patient Assistant, WS-06, in Outpatient Administration
Services at the Agency’s work facility in North Chicago, Illinois.
On June 12, 2007, Complainant filed an EEO complaint wherein she claimed
that the Agency discriminated against her on the basis of reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when:
1. On April 10, 2007, Complainant was not given credit for a suggestion
she made and she believed another person was given an award for it; and
2. On April 18, 2007, Complainant was not allowed to work overtime.
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 requested a hearing. The AJ granted the Agency’s Motion
for a Decision Without a Hearing and issued a decision without a hearing
on April 21, 2009.
The AJ found that no reprisal discrimination occurred. AJ’s Decision
at 4. The AJ found that Complainant failed to establish a prima facie
case of reprisal. Id. According to the AJ, the most recent prior
protected activity that Complainant engaged in prior to filing the
instant complaint was in 2002. Id. The AJ found that Complainant
did not engage in any prior protected activity of sufficient temporal
proximity to the allegations raised in this matter to establish that the
protected activity followed the alleged adverse treatment within such a
short period of time that retaliatory motivation can be inferred. Id.
Further, the AJ found that the alleged responsible management officials
were not aware of Complainant’s prior EEO activity. Id.
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 argues that the responsible management officials
were aware of her prior EEO activity. Complainant claims that she filed
an EEO complaint in 2002. With regard to claim (1), Complainant states
that her suggestion was rejected when it was raised in 2005, but in April
2007, each Agency supervisor said they were never told about the idea
before the April 2007 meeting. As for claim (2), Complainant maintains
that although she was told that the Chief of Administration Services
only wanted GS-5 employees to work overtime, two GS-6 out-patient clerks
were afforded overtime. Complainant contends that she was subjected
to disparate treatment and that she had the necessary skills to work
overtime.
In response, the Agency asserts that it articulated legitimate,
nondiscriminatory reasons for its actions. The Agency maintains that
Complainant could not show that she was retaliated against as to the
shared folders idea. With respect to overtime, the Agency asserts that
Complainant was not denied overtime. Rather, the Agency maintains that
by virtue of her grade and the nature of her work, Complainant did not
qualify for certain overtime opportunities.
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).
To prevail in a disparate treatment claim such as this, 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, 120 S.Ct. 2097 (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).
With regard to Complainant’s claim of reprisal, we shall assume,
arguendo, that Complainant set forth a prima facie case of reprisal.
The Agency stated as to claim (1) that Complainant did not suggest the
idea of shared folders and that in any event, no person received an award
for the suggestion. According to the Chief of Administration Services,
during a meeting on May 7, 2007, an employee suggested changing from using
green log books to using an electronic shared folder. The Chief stated
that citing the employee’s idea in a staff meeting was not intended to
take credit away from anyone and no award was presented for the idea.
We find that the Agency articulated legitimate, nondiscriminatory
reasons for claim (1). The Commission finds that there is no evidence
to support Complainant’s possible contention that an award was given
for the suggestion. Furthermore, there is no evidence that any action
taken with regard to the suggestion was motivated by retaliation.
With regard to claim (2), the Chief of Administration Services stated
that overtime work is GS-05 level work and that Complainant is a GS-06.
According to this official, the policy is to offer overtime to the
employees that are currently doing the job or employees performing a
similar job. This official stated that Complainant works as a telephone
advice person and the overtime work is in the Emergency Department as
an emergency room clerk. The Chief acknowledged that there are two lead
GS-6 clerks in the Emergency Department who work overtime and teach new
employees the tasks that need to be performed in the Emergency Department.
The Chief of Ambulatory Care & Processing stated that the differences
between Complainant’s position and that of emergency room clerks are
the duties and grade. This official further stated that according to
the Union Contract Article 24, overtime assignments will be equitably
distributed consistent with qualifications of the employees. We find
that the Agency articulated legitimate, nondiscriminatory reasons for
claim (2).
Complainant attempts to establish pretext by pointing out that GS-5
employees were not the only employees who were afforded overtime
opportunities. However, the record reflects that the only employees who
were not GS-5 and received overtime were the GS-6 Lead Clerks. The Chief
of Administration Services explained that these clerks as leads have
a different position description than Complainant. Complainant argues
that not all the individuals working overtime were reported by the Agency
but she has not submitted evidence to support her position.
With regard to each claim, we find that Complainant has failed to
establish that the reasons proffered by the Agency were pretext to mask
discriminatory intent.
CONCLUSION
The Agency’s determination in its final action that no discrimination
occurred is AFFIRMED.
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
January 20, 2012
__________________
Date
2
0120092702
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120092702