0120142148
09-08-2016
Vina D.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vina D.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120142148
Hearing No. 410201300411X
Agency No. 200105082012104022
DECISION
On May 24, 2014, Complainant appealed the Agency's April 22, 2014 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. 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 Social Worker, GS-11 in the Homeless Program at the Agency's Atlanta VA Healthcare System in Decatur, Georgia.
On October 10, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and age (51) when: on June 26, 2012, she was advised that the Professional Social Workers Standards Board denied her request for promotion to GS-12 Social Worker.
At the conclusion of the investigation into the complaint, 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, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on April 1, 2014.
In reaching his decision, the AJ found that the record developed during the investigation established the following undisputed facts.
In December 2010, Complainant applied for the position of GS-11 Social Worker through the Department of Housing and Urban Development/VA Supportive Housing program ("HUD/VASH"). The Agency offered and Complainant accepted the position in February 2011.
Shortly after her selection, Complainant found out that her GS-11 position had been re-posted as a GS-11/12 position depending on the applicant's experience. Complainant contacted an HR Specialist ("HR1") and requested that she be considered for the GS-12 level, given her ample experience in the field. HR1 told Complainant that she could not be converted to a GS-12 because she had already accepted the GS-11 position, and none of the social workers in the VA Atlanta system were GS-12. H1 told Complainant that in order to become a GS-12 Social Worker, she would have to work in the HUD/VASH program for a year, and then submit a promotion request to the Social Work Professional Standards Board ("the Board").
In December 2011, Complainant learned that two Social Workers (white, ages 28 and 30) were hired as GS-12 based on a letter of recommendation submitted to the Board, an opportunity she had not been afforded when she was offered the same position.
On December 13, 2011, less than one year after she accepted her position in February 2011, Complainant submitted her promotion request package to the Board,2 including her resume and a letter of recommendation from her prior supervisor, which included explanations and examples of Complainant's ability to perform GS-12 level responsibilities. In June 2012, the Board denied her request on the grounds that Complainant did not meet parts 4 and 5 of the Knowledge, Skills and Abilities ("KSA") requirement as provided in the GS-12 Social worker Qualification Standard found in Appendix G39 of the VA Handbook (Feb. 2009).
Complainant requested reconsideration of the Board's denial of her promotion. In December 2012, the Board again consideration Complainant's request for a promotion. Effective December 30, 2012, Complainant was promoted to the position of GS-12 Social Worker.
Based on this evidence, the AJ found that Complainant failed to establish a prima facie case for age and racial3 discrimination because she did not provide evidence to establish that any member of the Board was aware of Complainant's age and race when it denied her promotion.
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. 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. If a case can only be resolved by weighing conflicting evidence, a hearing is required. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without a hearing only upon a determination that the record has been adequately developed for such disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
The AJ found that Complainant failed to establish a prima facie case for age and racial discrimination because she did not provide evidence to establish that any member of the Board was aware of Complainant's age and race when it denied her promotion.
Complainant raises two arguments on appeal. First, she alleges that contrary to the AJ's finding, the members of the Board were aware of Complainant's age based on her resume, which provides that Complainant graduated from college in May 1983. Complainant argues that the AJ's reliance on the Board members' statements alone constituted an impermissible credibility finding, noting that the record does not provide whether or not the Board members personally viewed Complainant's resume prior to issuing their decision.
Second, Complainant argues that the AJ abused his discretion when he dismissed her motion to draw an adverse inference against the Agency for allowing the documents to be destroyed prior to the discovery period for the instant complaint. Specifically, the Agency destroyed the promotion request packages submitted to the board by about a dozen of Complainant's comparators. Having filed her complaint in October 2012, she asserts that the Agency was timely placed on notice that it must preserve comparator evidence, and that such a request was predictable as the information was necessary for Complainant to establish a prima facie case of discrimination. Complainant argues that the Agency "advanced no justification and there is no justification for it having disposed of documents relevant to this matter," and aptly points to our prior findings of adverse inference due to an Agency's inability to furnish of evidence.
After a thorough review of the record, including examining the testimonies of the various witnesses and other evidence provided by the parties, we find that the AJ's decision to issue a ruling without a hearing was appropriate. Complainant applied for and accepted a Social Worker position at the GS-11 level. It is unfortunate that she applied before the GS-11/12 option was offered, but the record establishes that Complainant was advised of the proper channel to request a promotion. She has not provided evidence that H1's actions in the hiring process when offering her the GS-11 position, or her responses to Complainant's questions about obtaining a promotion were discriminatory or pretext for discrimination. Regardless of whether the Board members were aware of her age, Complainant did not demonstrate how the legitimate nondiscriminatory reasons it provided for denying her promotion was pretext for discrimination.
Finally, we support the AJ's dismissal of Complainant's motion to draw an adverse inference. Complainant filed her formal EEO complaint on October 10, 2012. Complainant, during discovery, requested applications submitted to the Board prior to the filing of her complaint. The Agency's response to her request for production of documents was that promotion applications considered by the Board were discarded as soon as the decision was made by the Board, with only the decision recorded in the minutes. Complainant has not established that this procedure violated any retention regulation or otherwise occurred under circumstances justifying the sanction of an adverse inference.
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.
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
September 8, 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 Board consisted of three members - the chair was African American and the other two members were Caucasian. Two of the three Board members were over the age of 60 and the third was approximately 39.
3 The AJ also determined that in her affidavit provided during the investigation, Complainant stated that she was not contending that the Board discriminated against her because of her race.
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