0120112953
11-04-2011
Verna V. Brown, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Verna V. Brown,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112953
Hearing No. 420-2010-00131X
Agency No. 200L-0586-2009104846
DECISION
On May 15, 2011, Complainant filed an appeal from the Agency’s April 11,
2011, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the
appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Staff Pharmacist, GS-11, at the Agency’s G.V. Sonny Montgomery
Medical Center in Jackson, Mississippi.
On November 3, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (African-American),
sex (female), and disability (left hip and right knee injury) when:
1. on August 7, 2009, Complainant learned that the method used to
calculate her seniority had been changed;
2. since August 2008, the Agency has failed to provide Complainant with
a reasonable accommodation;
3. on August 18, 2009, Complainant was not selected for a GS-12 Clinical
Pharmacist position under Vacancy Announcement Number 09-089;
4. on October 7, 2009, Complainant was not selected for a GS-12 Staff
Pharmacist position under Vacancy Announcement Number 09-088; and
5. on December 11, 2009, Complainant was not selected for a GS-12 Clinical
Pharmacist position under Vacancy Announcement Number 09-089R1.
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 EEOC Administrative Judge (AJ). Complainant
requested a hearing, but the AJ denied the hearing request on the grounds
that Complainant failed to comply with the AJ’s orders. The AJ noted
that on June 25, 2010, Complainant was ordered to provide information
specifically requested by the AJ concerning her case. Complainant was
asked, among other things, to provide a list of witnesses along with their
expected testimony and list of Complainant’s damages. Complainant was
given as much as 75 days to provide the information. Complainant was also
informed that her failure to respond could be considered an abandonment
of her hearing request. When Complainant failed to respond to the AJ’s
order for over 100 days, the AJ remanded the complaint to the Agency, and
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.
As to claims (1), (3), (4) and (5), the Agency determined that its
management witnesses articulated legitimate, nondiscriminatory reasons
for the disputed actions. As to the seniority issue, in August 2009,
the Chief of the Pharmacy Service (Chief) reviewed the seniority listing
and discovered that employees were not correctly ranked based on seniority
at the Agency. Therefore, the Chief had all the employees’ seniority
recalculated based on the appropriate seniority computation.
As to the position in claim (3), the Chief stated that the selectee
(Selectee 1) was chosen as best qualified for the position because she
had a doctorate in pharmacy and had completed a residency. Complainant
only had a bachelors of science in pharmacy and had received a high
volume of complaints from unhappy patients. As to claim (4), the Chief
testified that the selectee (Selectee 2) was chosen because he had
the most experience, had been working for a long time with the Agency,
was detail oriented, and had good clinical and communication skills.
Complainant was not selected as noted in claim (3) because of the high
volume of complaints from patients. Finally, as to claim (5), the Chief
stated that she convened a selection panel, which recommended the selectee
(Selectee 3) as best qualified. Selectee 3 received a score of 141 from
the selection panel, while Complainant only scored an 83. According to
Agency witnesses, Selectee 3’s score was based on his performance
during an interview, his response to a case scenario (where he attained
a perfect score – 15 out of 15 points), his Doctor of Pharmacy degree,
his prior position supervising three clinical pharmacists in a clinic
which served over 1,200 patients, and his experience serving as clinical
pharmacist managing home-based patients. Complainant, on the other hand,
had no advanced degree, had little experience as a clinical pharmacist,
and only scored 4.33 points out of 15 on the case scenario, ranking the
lowest of the four candidates considered by the panel.
Based on the record, the Agency found that it provided legitimate,
nondiscriminatory reasons for claims (1), (3), (4) and (5). The Agency
then found that Complainant failed to prove, by a preponderance of
evidence, that the Agency’s reasons were pretext for discrimination.
As to claim (2), the Agency found that Complainant failed to show that
the Agency denied her a reasonable accommodation. The record indicated
that Complainant notified the Agency of her condition. As a result
of Complainant providing the Agency with information regarding her
condition, she was provided with in patient duties that accommodated
her medical restrictions. The Agency noted that Complainant admitted
during the investigation that the Agency had provided her with reasonable
accommodation; she merely argued that at some future date management could
assign her duties outside of her restrictions. The Agency concluded
that it had provided Complainant with reasonable accommodation and did
not violate the Rehabilitation Act. As such, the Agency determined that
Complainant failed to show that the Agency’s actions in claims (1) –
(5) constituted discrimination.
This appeal followed without comment.
ANALYSIS AND FINDINGS
As an initial matter, we address whether the AJ properly sanctioned
Complainant by dismissing her request for a hearing and remanding the
case to the Agency for a final decision. In appropriate circumstances,
an AJ may sanction a party for its conduct. Sanctions should be tailored
to deter the party from similar conduct in the future and, if warranted,
to equitably remedy any harm incurred by the opposing party. Sanctions
should not be so severe that they result in inequity, nor should they
be so lenient that they fail to serve as a deterrent. See Hale v. Dep't
of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). We note that
Complainant failed to provide any specific argument on appeal regarding
the dismissal of the hearing. After a careful review of the record,
the Commission determines that the AJ did not abuse his discretion
by dismissing Complainant's hearing request. The imposed sanction is
warranted due to the Complainant's failure to respond to the AJ's Order.
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 Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at 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”).
In claims (1), (3), (4) and (5), Complainant asserted that the Agency
treated her differently based on her race, sex and disability. 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 Agency provided legitimate, nondiscriminatory reasons for
its actions. As to the seniority calculation, the Chief indicated
that the seniority rankings were improperly calculated and asked that
the seniority rankings be reevaluated using the correct standard. As to
the three non-selections, the Chief provided legitimate reasons for not
selecting Complainant for the three positions. The Agency noted that
Selectee 1 had a doctorate in pharmacy and residency training while
Complainant only had a bachelor’s degree. As to Selectee 2, the
Chief noted that Selectee 2 was detail oriented and good communication
skills which were necessary for the position. The Chief also noted that
Complainant had received several complaints from patients. Therefore,
Selectee 2 was chosen for the position raised in claim (4). Finally, as
to the position raised in claim (5), the Chief averred that the selecting
panel had scored the applicants and Selectee 3 received a score of 141
while Complainant received an 83. Based on the panel’s review of the
applicants, it was determined that Selectee 3 was the best candidate
for the position. Based on our review of the record, we find that the
Agency articulated legitimate, nondiscriminatory reasons for its actions.
In addition, we find that Complainant has not shown that the Agency’s
reasons were pretext for discrimination. Accordingly, we agree with the
Agency’s final decision finding no discrimination as to claims (1),
(3), (4), and (5).
In claim (2), Complainant asserted that she was denied a reasonable
accommodation. Under the Commission's regulations, an agency is
required to make reasonable accommodation to the known physical
and mental limitations of an otherwise qualified individual with a
disability unless the Agency can show that accommodation would cause an
undue hardship. 29 C.F.R. § 1630.9. As noted above, for the purposes
of analysis, we assume Complainant is an individual with a disability.
29 C.F.R. § 1630.2(g)(1). Upon review of the record, we cannot find that
Complainant has asserted that she was denied a reasonable accommodation.
Complainant indicated during the investigation that the Agency provided
her with work within her restrictions; however she believed that in her
next assignment, she may be forced to work outside of her limitations.
Complainant has not indicated that the Agency denied her a reasonable
accommodation. Therefore, we conclude that the Agency’s final decision
correctly concluded that Complainant had not established that the Agency
violated the Rehabilitation Act.
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 decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
November 4, 2011
__________________
Date
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0120112953
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112953