01974878
04-11-2000
Nettie B. Lott, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Nettie B. Lott v. Department of Veterans Affairs
01974878
April 11, 2000
Nettie B. Lott, )
Complainant, )
) Appeal No. 01974878
v. ) Agency No. 890411
) 940319
Togo D. West, Jr., ) Hearing No. 280-96-4205X
Secretary, ) 280-96-4206X
Department of Veterans Affairs, ) 280-96-4207X
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, 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.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleges she was discriminated against:
(1) on the bases of race (Black) and age (54) when, on October 24,
1988, she was not referred for consideration for the position of Medical
Record Technician, GS-675-06, Vacancy Announcement 88-94;
on the basis of reprisal (prior EEO activity) when she was interviewed
but not selected for four positions within the Medical Administrative
Service (MAS) that she applied for between January 1991 and January
1993;<2> and
on the basis of reprisal (prior EEO activity) when she was reassigned
to different sections of MAS between January 1991 and January 1993.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
The record reveals that complainant, who at the time of the events
given rise to these issues was either a Medical Administrative Assistant
(GS-5/10) or a Patient Services Assistant (GS-6) at the agency's John
Cochran Veterans Affairs Medical Center in St. Louis, Missouri, filed
a formal EEO complaint with the agency on March 9, 1993, alleging
that the agency had discriminated against her as referenced in Claim
Nos. 2 and 3 above. The agency dismissed the complaint as untimely,
but this dismissal was reversed on appeal to the Commission. See Lott
v. Department of Veterans Affairs, EEOC Appeal No. 01933802 (January 26,
1994). The agency then accepted Claim Nos. 2 and 3 for investigation.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Prior to the resolution of this complaint, the AJ assigned
to complainant's case received a second case file containing a separate
complaint from complainant. This complaint, which raised Claim No. 1,
was originally filed on January 10, 1989 and settled on November 20, 1990.
The complaint was reinstated, however, after the agency breached the
settlement agreement. The AJ consolidated the two complaints and a
hearing was conducted on April 29 and 30, and May 10, 1996.
The AJ concluded that complainant failed to establish a prima facie case
of race or age discrimination in regard to Claim No. 1. Specifically,
the AJ found that complainant failed to demonstrate that she met the
basic qualifications for the position in question. Testimony from a
Personnel Staff Specialist (PSS) established that while complainant was
correct in arguing that education can be a substitute for experience
in certain cases, her application packet did not list specific
graduate courses she took that were directly related to the position.
This type of specificity is a requirement when substituting education
for experience in positions above the GS-5 level, such as the position
in question. Moreover, complainant acknowledged that she did not
submit an Employee Supplemental Qualifications Statement describing
activities that demonstrated her possession of the job elements listed
in the announcement. While not an absolute requirement when applying
for a job or promotion within the agency, this document was referenced
in the Vacancy Announcement as the primary source for determining
basic qualifications and ratings. PSS testified that after reviewing
complainant's application, she found complainant to be unqualified for
the position in question and hence did not refer her for consideration.
After hearing testimony from complainant and PSS, the AJ concluded that
complainant was not qualified for the position in question and thus did
not establish a prima facie case of discrimination.
In regard to Claim No. 2, the AJ concluded that complainant failed to
establish a prima facie case of reprisal discrimination because she
failed to demonstrate a causal connection between her prior EEO activity
and the agency's failure to select her for the positions at issue.
In so finding, the AJ found credible the testimony of the Chief of MAS
(CMAS) who noted that complainant was not selected for any of the four
positions in question because she was not the best qualified.
CMAS testified that Position #1 required the ability to meet difficult
deadlines and that he hired an applicant (S1) who had shown himself
capable of such a task. Complainant, on the other hand, had not
demonstrated an ability to handle any of the assignments that she had been
given. CMAS further noted that the selectee for Position #2 was required
to analyze data and make presentations of this data to management.
The selectee (S2) was heavily involved with computer analysis and had
been working in the data unit for some time. CMAS felt that complainant
did not have the ability to analyze hospital data in front of the Chief
of Staff or Director of the agency. CMAS testified that Position #3 was
filled by an applicant (S3) with experience in coding and overseeing the
billing of patients for inpatient and outpatient care, the kind of work
required by the position. S3 had worked as a coding clerk and had vast
experience in this area. CMAS testified that complainant did not have
the requisite knowledge of coding and produced work that needed constant
review by her supervisors. Finally, CMAS testified that Position #4
required significant computer knowledge and that the selectee (S4)
had a college degree in computer science and had worked extensively
in computer services within the agency. Complainant did not have this
level of knowledge.
CMAS noted that complainant's tendency to cause backlogs and generate
complaints from her coworkers factored into his decision not to select
her for any of the positions. Other management officials, including
complainant's supervisor and the Assistant Chief of MAS testified that
complainant had trouble producing work and getting along with others.
Based on this and other similar testimony, along with the fact that
complainant provided no evidence that her nonselections were related to
her prior EEO activity, the AJ concluded that the agency's reasons for
not selecting complainant were unrelated to her prior EEO activity
Similarly, the AJ concluded that complainant failed to establish a prima
facie case of reprisal discrimination in regard to her reassignments
because she failed to demonstrate a causal connection between her
prior EEO activity and the agency's actions. The AJ found credible the
testimony from various management officials who testified that complainant
was initially reassigned to various jobs to give her experience in all
the sections of MAS. These officials testified that, as time went on,
complainant was reassigned in an attempt to find a position in which she
would be happy and productive, as she made clear that she was not pleased
with her various assignments. The AJ also credited testimony that, in
every job she was placed within MAS, complainant generated complaints
from her coworkers and supervisors, who noted that complainant could not
keep up with her assignments, was causing backlogs, and could not get
along with her coworkers. The AJ concluded that the agency's reasons
for reassigning complainant were unrelated to her prior EEO activity.
Having found that complainant failed to establish a prima facie case on
any of her issues, the AJ concluded that complainant did not establish
that she was discriminated against as alleged and recommended a finding
of no discrimination.
The agency's final decision implemented the AJ's decision. Complainant
makes no contentions on appeal, and the agency requests that we affirm
its final decision.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race or age. Given the close
proximity in time between the original EEO activity at the end of 1990
and the beginning of the alleged retaliation in January 1991, it may
have been more appropriate to find that complainant did establish a prima
facie case of retaliation in regard to Claim Nos. 2 and 3. Such a finding
would not alter the end result, however, as the testimony of various
management officials described above provides a sufficient articulation
of the agency's legitimate reasons for its actions and complainant offered
no evidence to establish that these reasons were pretextual. This slight
reframing of the legal analysis does not, therefore, provide a basis to
disturb the AJ's decision, nor do we discern any other basis for doing so.
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
4/11/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The four positions were: Vacancy Announcement No. 91-146 (GS-6 Patient
Services Assistant) (Position #1); Vacancy Announcement No. 92-49 (GS-7
Medical Administration Specialist) (Position #2); Vacancy Announcement
No. 92-55 (GS-6 Program Assistant) (Position #3); and Vacancy Announcement
No. 92-97 (GS-5 target GS-9 Medical Record Administrative Specialist)
(Position #4).