0120151214
10-11-2016
Vena H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vena H.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151214
Agency No. 2004-0659-2013102158
Hearing No. 430-2014-00125X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal from the Agency's January 20, 2015 final decision 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Social Worker, GS-11, at the Agency's Veterans Affairs Medical Center (VAMC) in Salisbury, North Carolina.
On March 8, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On June 14, 2013, Complainant filed a formal EEO complaint alleging the Agency discriminated against her on the bases of race (African-American), age (67 years old), and in reprisal for prior EEO activity when, on January 29, 2013, she became aware that management failed to afford her the opportunity to apply for a supervisory position when they converted a non-supervisory position to a supervisory position, but did not open the new position for competition.2
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On January 7, 2015, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ determined that the record developed during the investigation established the following undisputed facts.
Prior to November 2012, Complainant was assigned as a Substance Abuse Disorder Specialist, GS-11, in the Health Care for Homeless Veterans Program (HCHV) at the Salisbury VAMC. In November 2012, Complainant began working out of an office in the Substance Abuse program in Charlotte, North Carolina.
In the fall of 2012, prior to Complainant's move to the Charlotte office, management began evaluating the program in an effort to deal with an influx of new cases. As a result, the Substance Abuse Disorder Specialist ("the Specialist") (Caucasian, age 32), GS-12, was advised that her position would acquire some supervisory duties, including the supervision of GS-9 Social Workers. The Specialist had apparently been competitively selected for her position, advertised in January 2012. The January 2012 vacancy announcement for the Specialist position did not indicate that it would have supervisory duties.
The AJ further noted that it was not initially contemplated that Complainant, a GS-11, would fall under the Specialist's supervision. However, Complainant complained that the change in duties adversely affected her as she averred that the Specialist attempted to direct her time and workload from October 2012 to November 2012, at which time Complainant moved to the office in Charlotte.
On January 29, 2013, the Assistant Chief announced to all employees, including Complainant, a number of official changes to the supervisory structure of the Homeless program. Essentially, three non-supervisory GS-12 employees, including the Specialist, were to be non-competitively reassigned to GS-12 supervisory positions and serve as first-level supervisors to different areas within the program. At that time, Complainant learned that the Specialist was assigned to be her supervisor in her position in Charlotte.
Complainant essentially argues that she did not apply for the Specialist's position a year before (in January 2012) because, at the time the position was open for competition, she did not know it would become a supervisory position. Complainant argues that the potential for the subject position to be converted to a supervisory position was intentionally withheld in an effort to discriminate against older African-American women including herself. Complainant also stated that she did not apply for the subject position because the HCHV Director misinformed her about the position by stating that the selectee would be required to work in the evening and away from the job site. Complainant acknowledged she regarded these potential duties as undesirable and decided not to apply. Complainant later learned that the selectee did not have to perform such duties.
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if she had, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
ANALYSIS AND FINDINGS
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.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Essentially, she argues that the Agency purposely deceived her into not applying for the GS-12 Specialist position by not revealing that a year later it would later be converted to a supervisory position and by falsely indicating it had undesirable duties. However, beyond Complainant's mere speculation, she has provided no evidence to support her claim of this purposeful deception or its discriminatory motivation.
After careful consideration of Complainant's arguments on appeal, we concur with the AJ's findings that although the supervisory duties were added to the Specialist's position many months after her position was competitively advertised and she was selected, there was no evidence that the restructuring of the Homeless program was anticipated at the time of selection or that the changes were implemented for discriminatory reasons. The AJ further correctly determined that while the HCHV Director may have been mistaken in her belief about the duties of the subject position, Complainant "neither alleges nor can show that she was intentionally misled in an effort to prevent her from applying. Ultimately, the decision to apply, or not apply, remained with Complainant, and no one prevented her from applying for any reason."
The undisputed facts fully support the AJ's determination that the responsible management officials articulated legitimate, non-discriminatory reasons for their actions, and Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
The Agency's final order implementing the AJ's decision by summary judgment, finding no discrimination, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
October 11, 2016
__________________
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.
2 The record seems to indicate that another claim, concerning an August 2013 meeting about non-clinical numbers, was later raised by Complainant. However, this claim does not seem to have been adjudicated, and Complainant does not raise it on appeal. Therefore, we decline to address it further.
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