Sylvia A. Bates, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 28, 2009
0120081372 (E.E.O.C. Aug. 28, 2009)

0120081372

08-28-2009

Sylvia A. Bates, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Sylvia A. Bates,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120081372

Agency No. 200H-0595-2007-100781

DECISION

On January 28, 2008, complainant filed an appeal from the agency's

December 19, 2007 final decision concerning her equal employment

opportunity (EEO) complaint alleging employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely

and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following

reasons, the Commission MODIFIES the agency's final decision.

ISSUES PRESENTED

1. Whether the agency properly dismissed complainant's claim that

the agency discriminated against her on the basis of disability when

it informed him that the Lebanon, Pennsylvania Hospital Toastmasters

International Club would have to get approval regarding dues.

2. Whether the agency properly concluded that complainant was not

subjected to disability discrimination when it failed to select her for

the position of Visual Information Specialist, GS-7/9.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a secretary, GS-6, at the agency's Extended Care and Rehabilitation

Service of facility in Lebanon, Pennsylvania Veterans Affairs (VA)

Medical Center.

On March 14, 2007, complainant filed an EEO complaint alleging that she

was discriminated against on the basis of disability when:

1. On November 15, 2006, the agency informed complainant that she was

not selected for the position of Visual Information Specialist, GS-7/9,

as announced under vacancy announcement no. MP-06-77; and,

2. On February 28, 2007, the agency informed complainant that the Lebanon

VA Hospital Toastmasters International Club would have to obtain approval

regarding dues.

In a letter dated April 2, 2007, the agency notified complainant

that it accepted claim 1 for investigation but dismissed claim 2 on

the basis that it failed to state a claim. At the conclusion of the

investigation of claim 1, complainant was provided 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 final

decision on October 1, 2007. In its final decision, the agency found that

complainant was not subjected to discrimination as alleged because she

did not establish that she is an individual with a disability or prove

that the agency's articulated non-discriminatory reasons were pretextual.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the agency improperly found no

discrimination and submits voluminous medical records in support of her

claim that she is an individual with a disability. The agency requests

that we affirm its final decision.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").

As an initial matter, we note that the agency dismissed claim 2 on the

basis that this matter failed to state a claim. The regulation set forth

at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency

shall dismiss a complaint that fails to state a claim. An agency shall

accept a complaint from any aggrieved employee or applicant for employment

who believes that he or she has been discriminated against by that agency

because of race, color, religion, sex, national origin, age or disabling

condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal

sector case precedent has long defined an "aggrieved employee" as one

who suffers a present harm or loss with respect to a term, condition, or

privilege of employment for which there is a remedy. Diaz v. Department

of the Air Force, EEOC Request No. 05931049 (April 21, 1994).

In this case, complainant alleged that she was discriminated against when

her supervisor suggested that she was "out of order" for bringing the

matter of local Toastmasters dues to a vote before it was presented to

the Medical Center Education staff. Complainant has not shown that she

was harmed with respect to the terms, conditions, or privileges of his

employment by the agency's alleged actions. Thus, we find that the agency

properly dismissed claim 2 on the basis that it failed to state a claim.

With respect to claim 1, in order 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). Complainant must initially establish a prima

facie case by demonstrating that he 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). 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. 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,

120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,

519 (1993).

In this case, the Commission finds that the record is inadequately

developed for a determination of the merits of claim 1. The Commission's

regulations and EEOC Management Directive for 29 C.F.R. Part 1614

(November 9, 1999) (MD-110), require agencies to develop an impartial and

complete factual record. See 29 C.F.R. � 1614.108(b). An appropriate

factual record "is one that allows a reasonable fact finder to draw

conclusions as to whether discrimination occurred." MD-110, Chapter 6,

� VI.D. Here, the final agency decision concluded that complainant

failed to persuasively rebut the agency's explanation that it did not

choose complainant for the position because the selectee was better

qualified and received higher ratings from the interview panel.

However, relevant evidence that would support or rebut the agency's

explanation was not included in the record despite being requested by

the investigator. In particular, the record does not contain copies

of candidates' applications, the vacancy announcement, or the position

description for the Visual Information Specialist position. Moreover,

although there were four officials on the interview panel, the agency

only provided a set of interview notes from an unknown source. Therefore,

we are unable to determine whether complainant was more qualified for the

Visual Information Specialist position than the selectee. See Williams

v. Department of Education, EEOC Request No. 05970561 (August 6, 1998)

(pretext may be demonstrated in a nonselection case by showing that

a complainant's qualifications are observably superior to those of

the selectee). Accordingly, we remand claim 1 for a supplemental

investigation. See Thomas Kirkendoll v. Tennessee Valley Authority,

Appeal No. 0120083064 (October 20, 2008) (Commission ordered supplemental

investigation in non-selection case where record did not contain copies

of the submitted applications, the vacancy announcement, or a complete

copy of complainant's Personal History Record).

CONCLUSION

Accordingly, the Commission affirms the agency's dismissal of claim

2. The Commission VACATES the agency's final decision finding no

discrimination with respect to claim 1, and REMANDS claim 1 to the agency

to conduct a supplemental investigation pursuant to the ORDER below.

ORDER (E0408)

The agency is ordered to conduct a supplemental investigation, which

shall include the following actions:

1. The agency shall ensure that the investigator obtain evidence

consistent with this opinion which may be relevant in determining the

merits of claim 1, including, but not limited to, the vacancy announcement

for the Visual Information Specialist position; application materials

submitted by complainant, the selectee and other applicants for the Visual

Information Specialist position; the position description for the Visual

Information Specialist position; all notes and documentation from the

interview panelists; and, any other documentation from the selection

process not already in the record.

2. The agency shall afford complainant the opportunity to introduce any

new evidence into the record pertinent to claim 1.

3. The agency shall ensure that the investigator completes a

supplemental investigation within sixty (60) calendar days of the date

this decision becomes final. The agency shall issue complainant a copy

of the new Report of Investigation, including the matters included in

the supplemental investigation. The agency shall notify complainant

that within thirty (30) calendar days of receipt of the Report of

Investigation, he has the right to request a hearing and decision from

an EEOC Administrative Judge or may request an immediate final decision

pursuant to 29 C.F.R. � 1614.110.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington,

DC 20013. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant

has the right to file a civil action on the underlying complaint in

accordance with the paragraph below entitled "Right to File A Civil

Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (Z1008)

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

08/28/09

__________

Date

2

0120081372

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

7

0120081372