01a46098_r
07-28-2005
Susan C. Beckwith, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Susan C. Beckwith v. Department of Veterans Affairs
01A46098
July 28, 2005
.
Susan C. Beckwith,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A46098
Agency Nos. 200M-02-102795; 200M-03-100544
Hearing Nos. 320-2003-8073X; 320-2003-8559X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final order concerning her formal EEO complaints 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq., and the Equal Pay Act of 1963 (EPA),
as amended, 29 U.S.C. � 206(d) et seq.
On April 15, 2002, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
Complainant filed a formal EEO complaint dated June 15, 2002
(Agency No. 200M-02-102795), claiming that she was the victim of
unlawful employment discrimination on the bases of sex (female), age
(D.O.B. 10/09/46), perceived disability (multiple sclerosis - 1979) ,
and in violation of the EPA.<1>
On August 27, 2002, the agency issued a partial acceptance/dismissal.
The agency determined that Agency No. 200M-02-102795 was comprised of
four claims. The agency dismissed the following three claims on the
grounds of untimely EEO Counselor contact: time and leave; failure to
promote; assignment of duties.
The agency accepted the following claim for investigation:
Complainant claimed that the agency violated the EPA when agency
officials failed to fully utilize her as a Nurse Practitioner (�NP�) and
instead hired younger non-disabled males for the position of Physician
Assistant (�PA�) and paid them at a higher rate than the compensation
she received as Nurse Practitioner.
Complainant filed another formal EEO complaint dated December 27, 2002
(Agency No. 200M-03-100544). Therein, complainant claimed that she
was the victim of unlawful employment discrimination on the bases of sex
(female), age (D.O.B. 10/09/46), perceived disability (multiple sclerosis
- 1979), and in reprisal for prior protected activity.
On April 24, 2003, the agency issued a partial acceptance/dismissal
of Agency No. 200M-03-100544. The agency dismissed claim (B), which
addressed the denial of an appropriate pre-complaint process; and
interference in the process and fragmentation of the prior complaint.
The agency determined that this claim alleged dissatisfaction with the
processing of a previously filed complaint (Agency No.200M-02-102795).
In Agency No. 200M-03-100544, the agency accepted for investigation
the following claim:
Complainant claimed that she was discriminated against on the bases of
sex, age, disability and in reprisal for prior EEO activity when the
agency hired a younger, non-disabled female to a Physician Assistant
(�PA�) position for which she was found not qualified.
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a hearing before an Administrative
Judge (AJ).
The AJ consolidated the two complaints and issued a decision without a
hearing. In his decision, the AJ concurred with the agency's dismissal
of the non-accepted claims. The AJ found no discrimination regarding
the two accepted claims, identified above as claims (1) and (2).
The agency's final order, dated August 30, 2004, implemented the AJ
decision.
Dismissals of claims
The Commission determines that in Agency No.200M-02-102795, the AJ
properly found that the three dismissed claims were untimely raised
with an EEO Counselor. In these claims, complainant cited various
incidents that purportedly occurred from 1982 through February 20, 2002.
However, complainant did not contact an EEO Counselor until April 15,
2002, which is beyond the requisite 45 days. Complainant has failed to
present adequate justification pursuant to 29 C.F.R. �1614.105(a)(2),
for extending the limitation period beyond forty-five days.
Regarding Agency No.200M-03-100544, the AJ properly sustained the
agency's dismissal of claim (B), concerning the denial of an appropriate
pre-complaint process, interference in the process and fragmentation
of the complaint, on the grounds that claim (B) alleged dissatisfaction
with the processing of a previously filed complaint.
Accepted Claims: Claims (1) and (2)
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a 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.
Regarding claim (1), the AJ properly found no discrimination. The AJ
cited the agency's �Motion to Dismiss or in the Alternative, Summary
Judgment,� in determining that while the NP and PA positions have some
tasks in common, these two positions nevertheless have differences in
scope in practices, which support a different pay. Specifically, the
scope of practice for the PA position allows PA's to prescribe Class II-V
controlled substances and to perform a number of invasive procedures not
included in complainant's scope of practice (i.e., anoscopy, cryotheraphy,
endoctracheal suction, incision and drainage).
Regarding claim (2), the AJ again properly found no discrimination.
The AJ determined that complainant did not possess the educational
requirements necessary to qualify for a PA position, which the AJ
determined required a certification showing completion of 12 months in
a Physician Assistant training program or a Bachelor's degree or higher
from a PA training program.
The Commission agrees with the AJ that the agency presented legitimate,
non-discriminatory reasons for its actions. The Commission notes,
moreover, that complainant did not establish that the agency's articulated
reasons were a pretext for discrimination.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and 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 motivated by discrimination. We discern no basis to disturb the
AJ's decision.
We AFFIRM the agency's final order implementing the AJ's finding of no
discrimination for claims (1) and (2), and the dismissal of the remaining
claims identified herein.
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
July 28, 2005
__________________
Date
1The Commission presumes for purposes of
analysis only, and without so finding, that complainant is an individual
with a disability.