0120162266
04-10-2018
Tori H.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tori H.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120162266
Hearing No. 520-2015-00425X
Agency No. 200H063120144432
DECISION
On July 1, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 31, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Assistant, GS-06 at the Agency's facility in North Hampton, Massachusetts.
On October 7, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), disability (anxiety, depression, stress, and emotional distress), age (48), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when:
1. on August 7, 2014, the Human Resources Officer (HR Officer, Hispanic, Male, 29 years old, Disability, and no prior EEO activity) did not select Complainant for the position of Human Resources Specialist for Vacancy Announcement TK-14-1097950LBR;
2. On September 11, 2014, the HR Officer issued Complainant a reprimand;
3. On September 23, 2014, the HR Officer did not select Complainant for either of two positions for a TCF Inter/Recent College Graduate for Vacancy Announcement TK-14-1224357SAM;
4. In December 2014, Complainant withdrew her name as an applicant for two additional positions posted under Vacancy Announcement TK-15-SAM-1246073.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections filed on November 18, 2015, the AJ assigned to the case granted the Agency's November 2, 2015, motion for a decision without a hearing and issued a decision without a hearing on May 19, 2016.
The AJ determined that there were no material facts in dispute. Complainant applied for the position listed in claim (1) and was placed on the certificate of eligibles with nine other applicants. Complainant's supervisor (Supervisor, over 40, White, male, no disability and no prior EEO activity) was the selecting official on the vacancy who also served on the Interview Panel with Panelist 1 (White, woman, 51 years old, no disability and no prior EEO activity) and Panelist 2 (White woman, 35 years old, no disability and no prior EEO activity). The Supervisor indicated that the selection was made based on a pre-interview exercise, the interview and a 24-hour writing exercise conducted with each candidate. The Supervisor noted that he did not believe that Complainant provided answers that were for the GS-9 position for which she applied. He noted that Complainant found the pre-interview exercise difficult while the two selectees found the task easy. Panelist 1 indicated that Complainant was already an employee of the department and she felt that Complainant did not represent her knowledge in Human Resources well in the interview. Panelist 1 was also concerned with Complainant's response regarding meeting a deadline, she asserted that Complainant stated, "I will have something coming up that I will not meet the deadline." Similar questions about meeting deadline during the interview did not result in high scores for Complainant. Panelist 2 similarly found that Complainant did not seem prepared for the interview. She also noted a tone of condescension by Complainant during the interview and she felt that Complainant was lecturing her. Based on the scores by the Interview Panel, the Supervisor chose the selectees who received scores of 156 and 137. In contrast, Complainant received a score of 82.5.
As to claim (2), the AJ found that the HS Officer issued Complainant a Letter of Reprimand for "careless workmanship" and "failure to follow instructions." The Letter also stated that one of Complainant's errors resulted in a delayed entrance on duty date for at least one candidate and has also resulted in numerous other employees starting employment without prior knowledge of their official offer. The Letter indicated that this negatively impacted the onboarding of at least five employees.
With respect to claim (3), the HR Officer was the selecting official on the positions at issue. He was not on the Interview Panel for this selection. Panelist 3 (African-American, female, over 50 years old, no disability and no prior EEO activity), Panelist 4 (White, female, 58 years old, and unknown disability or prior EEO activity), and Panelist 5 (Hispanic, male, 45 years old, and unknown disability or prior EEO activity) conducted interviews and rated the applicants. Complainant was rated the bottom of the four candidates and she was not chosen.
Finally, as to claim (4), the AJ found that Complainant applied for the Human Resources Specialist position in December 2014. She subsequently withdrew her name. She asserted that the reason she removed her name was because she "had already experienced harassment." She "had already been to counseling, already on medical - medicine for anxiety and depression." She claimed that she was afraid of being denied the position again.
Based on these facts, the AJ conducted an analysis of her claims of discrimination. With respect to the non-selections alleged in claims (1), (3), and (4), the AJ found that Complainant failed to show she was subjected to discrimination. The AJ found that the Agency provided legitimate, nondiscriminatory reasons for the selections alleged in claims (1) and (3). The Panelists provided reasons for ratings they gave Complainant with regard to the positions raised in claims (1) and (3). With respect to claim (4), the AJ noted that Complainant indicated that she withdrew her name from consideration. As such, the AJ held that Complainant did not establish a prima facie case of discrimination. Finally, the AJ addressed Complainant's claim (2) involving the Letter of Reprimand. The AJ held that the HR Officer provided legitimate, nondiscriminatory reasons for the Letter namely, Complainant's numerous mistakes. The AJ then determined that Complainant provided only conclusory statements to establish that the Agency's reasons were pretext. The AJ concluded that this was insufficient to establish that Complainant was subjected to unlawful discrimination as she alleged.
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. This appeal followed.
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Upon review, we find that the AJ correctly determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. A review of the record shows that the Interview Panelists did not rate Complainant high enough to be considered for the first position and they provided specific examples of Complainant's weak performance during the interview as reasons for not selecting her for the position at issue in claim (1). As for claim (3), the panelists placed scores in a matrix and Complainant was ranked lowest of all the candidates. As for the position alleged in claim (4), Complainant withdrew her name for consideration, as such, she was not selected for the position in question. Finally, as to claim (2), the Agency indicated that Complainant was issued the Letter based on her mistakes which negatively impacted employees. Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We now turn to Complainant to establish that the Agency's reasons were pretext. Complainant merely provided summary statements that she was subjected to unlawful discrimination. We find that this is not sufficient to establish that the Agency's reasons were pretext for discrimination based on her race, sex, age, disability and/or prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order implementing the AJ's decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
April 10, 2018
__________________
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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