01992324
10-13-2000
Visalakshi Malladi, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Visalakshi Malladi v. Department of Veterans Affairs
01992324 & 01996414
October 13, 2000
.
Visalakshi Malladi,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 01992324 & 01996414
Agency Nos. 96-1758, 97-0332, 97-1670, 98-3161
Hearing Nos. 130-97-8065x, 130-98-8022x, 130-98-8159x, 130-99-8121x
DECISION
Visalakshi Malladi (complainant) timely initiated appeals from two
final agency orders concerning her complaints of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The
appeals are accepted pursuant to 29 C.F.R. � 1614.405. For the sake of
administrative economy, the appeals are hereby consolidated.
In complaints filed on May 6, 1996, November 8, 1996 and June 2, 1997 and
consolidated by an EEOC Administrative Judge (collectively Complaint 1),
complainant alleged she was discriminated against and harassed<2> on the
bases of race (Asian Pacific), national origin (Indian), sex (female),
disability (poliomyelitis) and reprisal (prior EEO activity) when:
she was rated unsatisfactory on her proficiency report for the period
of March 17, 1995 to March 17, 1996;
her staff was asked to remove her belongings from the office of the Chief,
Physical Medicine and Rehabilitation Services (PM&RS), without allowing
her ample time to remove them herself;
an order that she had written was changed by another doctor on May 8,
1996;
her referrals and consults were countersigned by a Physician Assistant
on July 9, 1996;
a copy of a letter she received regarding the removal of an admonishment
from her official personnel folder was sent to two other employees;
she accused another doctor of ethical violations and the medical panel
that investigated only interviewed the other doctor; and
she received a satisfactory performance rating on April 4, 1997, instead
of an outstanding rating.<3>
In a complaint filed on July 7, 1998 (Complaint 2), complainant alleged
that she was discriminated against on the bases of sex, disability and
prior EEO activity when:
the agency determined the qualifications for the position of
Physician/Manager (Specialized Examination Unit), did not include
complainant's qualifications in that description, and subsequently
selected someone who had qualifications similar to complainant's.
For the following reasons, we VACATE the agency's final orders and REMAND
the subject complaints for an administrative hearing.
BACKGROUND
Complaint 1
The record reveals that during the relevant time in regard to Complaint 1,
Complainant was employed first as the Chief of PM&RS, and then as a Staff
Physician in Ambulatory Care at the agency's medical center in Tuskegee,
Alabama.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed formal complaints on May 6, 1996,
(Complaint No. 96-1758 encompassing claims 1 and 2 above), November 8,
1996 (Complaint No. 97-0332, encompassing claims 3-6 above) and June
2, 1997 (Complaint No. 97-1670, encompassing claim 7 above). At the
conclusion of the investigations, complainant was provided a copy of the
investigative files and requested a hearing before an EEOC Administrative
Judge (AJ)<4>. The AJ consolidated the three complaints and issued a
decision without a hearing finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of race, national origin, sex, and disability discrimination on any of
her claims, noting that she provided no evidence of similarly situated
employees outside her protected groups who were treated more favorably
than she. The AJ then concluded that while complainant established
a prima facie case of reprisal discrimination in regard to claim 1,
the agency articulated a legitimate non-discriminatory reason for
rating complainant �unsatisfactory,� namely, that as Chief of PM&RS
she experienced a substantial number of interpersonal conflicts with
her subordinates due to her lack of leadership. An agency witness
noted that an outside review of PM&RS found that the staff had low
morale and recommended that complainant be removed. The AJ concluded
that complainant failed to raise a �genuine dispute� as to whether the
proffered reason was a pretext for unlawful discrimination.
The agency's final order implemented the AJ's decision.
Complaint 2
During the relevant time in regard to Complaint 2, complainant was
employed as a Staff Physician in Ambulatory Care at the agency's Central
Alabama Veterans Health Care System (CAVHCS) in Tuskegee, Alabama.
Believing she was a victim of discrimination, complainant sought EEO
Counseling and subsequently filed a formal complaint on July 7, 1998.
At the conclusion of the investigation, complainant was provided a copy
of the investigative file and requested a hearing before an EEOC AJ.
The AJ issued a decision without a hearing finding no discrimination.
The AJ concluded that although complainant established a prima facie case
of sex discrimination, she failed to provided any evidence to establish
pretext. Moreover, the AJ found that complainant failed to establish a
prima facie case of reprisal discrimination, as she failed to establish
a causal link between her protected activity and the agency's action.
Finally, the AJ concluded that complainant presented no evidence of
pretext with respect to her reprisal allegation. The AJ did not directly
address the disability discrimination claim.
CONTENTIONS ON APPEAL
Complaint 1
Complainant raises arguments on appeal similar to those she raised
before the agency and before the AJ when she protested his decision to
issue findings and conclusions without a hearing. Through her attorney,
she examines the AJ's findings thoroughly and contends that there are
numerous genuine issues of material fact.
The agency stands on the record and requests that we affirm its final
action implementing the AJ's decision. The agency further contends
that complainant's numerous �meritless� EEO complaints indicate that
she is using the EEO system as a weapon to harass the agency and asks
that the Commission find that she is abusing the EEO process.
Complaint 2
Complainant raises many contentions on appeal. Most importantly,
she notes that the AJ was incorrect in making a determination on her
complaint without a hearing. The agency again stands on the record and
raises the contention that complainant is abusing the EEO system.
FINDINGS AND ANALYSIS
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.
This regulation is patterned after the summary judgment procedure set
forth in Rule 56 of the Federal Rules of Civil Procedure. The Supreme
Court has stated that summary judgment is appropriate where the court
determines that, given applicable substantive law, no genuine issue of
material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). An issue is "genuine" if the evidence is such that a
reasonable fact-finder could find in favor of the non-moving party.
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). In the
context of an administrative proceeding under Title VII, summary judgment
is appropriate if, after adequate investigation, complainant has failed
to adduce evidence sufficient to establish the essential elements of his
or her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d Cir. 1988). In determining whether to grant summary judgment, the
court's function is not to weigh the evidence and render a determination
as to the truth of the matter, but only to determine whether there exists
a genuine factual dispute. Anderson, 477 U.S. at 248-49.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
Our review of a case where summary judgment has been granted is de novo.
See Equal Employment Management Directive for 29 C.F.R. Part 1614
(EEO-MD-110), 9-16 (November 9, 1999).
Complaint 1
After a careful review of the record, we find that the AJ erred when he
concluded that there was no genuine issue of material fact in this case.
For example, the agency alleged that complainant's unsatisfactory
performance rating was issued due to complainant's lack of administrative
competence and personal qualities. In accepting this as true, the AJ
apparently relied on the testimony of management officials who rated
complainant and a report from an outside review team that was called in to
evaluate the PM&RS. However, there is ample evidence in the record that
complainant was performing well as Chief of PM&RS during this period.
Not only did complainant provide testimony indicating as much, there
are also several affidavits in the record provided by employees whom
complainant supervised during this period who testified that they got
along well with her and that she did a good job. Moreover, the record
establishes that there were no complaints or reports of contact against
or concerning complainant during the rating period. Statements made
by complainant's staff at a December 1995 meeting were documented and
indicate that complainant was a supporting and caring supervisor who
always took time to listen to the concerns of her staff. In addition,
complainant had been serving as Chief of PM&RS for several years prior to
the unsatisfactory evaluation and had always received good performance
ratings. In the performance appraisal for the year before the one at
issue, complainant's leadership abilities were specifically praised.
Another example of a genuine dispute as to material fact involves
the AJ's finding concerning the satisfactory performance rating that
complainant received in April 1997. The AJ appears to have relied on
the representations of management officials that complainant did not
fully participate in helping the ambulatory area move ahead in meeting
patients' needs. These representations are contradicted by testimony
from complainant and a co-worker who indicate that complainant was told
that she need only concentrate on her speciality and did not have to do
certain duties. Moreover, in support of his claim that complainant
did not fully participate in meeting patient needs and therefore did
not deserve a higher than satisfactory rating, a management official
noted that she failed to provide appropriate patient care to a person
by prescribing inappropriate weight for lumbar traction. Complainant
provided evidence that her prescription was changed by another doctor
and that she complained to the ethics committee about this change.<5>
The contradictory evidence described above is precisely the type of
evidence that is appropriate for cross-examination, elaboration and
credibility determinations. We note that the hearing process is intended
to be an extension of the investigative process, designed to �ensur[e]
that the parties have a fair and reasonable opportunity to explain and
supplement the record and to examine and cross-examine witnesses.�
See EEOC MD-110, 6-1; see also 29 C.F.R. �� 1614.109(c) and (d)).
�Truncation of this process, while material facts are still in dispute
and the credibility of witnesses is still ripe for challenge, improperly
deprives complainant of a full and fair investigation of her claims.�
Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575
(March 26, 1998). See also Peavley v. United States Postal Service,
EEOC Request No. 05950628 (October 31, 1996); Chronister v. United States
Postal Service, EEOC Request No. 05940578 (April 23, 1995). After a
careful review of the record, we find that there are unresolved issues,
including those described and others, which require an assessment as
to the credibility of the various management officials, co-workers,
and complainant, herself. Therefore, judgment as a matter of law for
the agency should not have been granted.
We also find that complainant alleged that the incidents she described
constitute an ongoing pattern of harassment. Complainant refers to some
of the behavior she endured as �harassment� in her original complaints.
Moreover, in her statements in opposition to the issuance of findings
and conclusions without a hearing, complainant refers to the pattern of
discrimination she faced. The AJ must address this harassment claim.
Complaint No. 2
Furthermore, we also find that the AJ (a different AJ from that in
Complaint 1) erred when he concluded that there was no genuine issue of
material fact in this case.
For example, although the AJ did not specify what the agency's
non-discriminatory explanation was, he did determine, apparently
based on the testimony of the selecting official, that the agency
provided a satisfactory explanation for its selection. Based on
the agency's submissions, it appears that the agency did articulate a
non-discriminatory reason for determining that the position in question
could only be filled by a doctor who was board certified in one of three
fields, only to eventually select someone who was not certified in one of
those fields, but instead was certified in the same field as complainant.
Specifically, the agency noted that no one applied for the position as
advertised, so the selecting official examined other resumes he had for
some unspecified reason and then spoke with a doctor who seemed to be a
viable candidate. The agency added that the selecting official had no
idea that complainant was interested in the position. Complainant, on the
other hand, alleged that the decision to exclude her board-certified field
from the vacancy announcement was an effort to prevent her from applying
for a position for which she was qualified, and put forth the eventual
selection of someone with her exact board certification as evidence of
this claim. Moreover, she observed that the selecting official was aware
that she was anxious to move to a new position, noting that he testified
to this. While the AJ concentrated on the selection of a qualified
applicant in determining that there was no genuine issue of material
fact, the important questions in this case are why the agency required
applicants to possess certain qualifications and later determined them
to be unnecessary and why it did not then make this decision known to
other possible interested employees, rather than sift through resumes
received from different sources. The answers to these questions are
material and turn on the credibility of the witnesses. Therefore,
judgment as a matter of law for the agency should not have been granted.
As a final matter, we note that despite the agency's claim to the
contrary, the record does not establish that the subject complaints
are part of a clear pattern of misuse of the EEO process for a purpose
other than the prevention and elimination of employment discrimination.
See 29 C.F.R. � 1614.107(a)(9)). The regulations allow for a finding of
abuse of process if there is (1) evidence of multiple complaint filings;
and (2) allegations that are similar or identical, lack specificity or
involve matters previously resolved; or (3) evidence of circumventing
other administrative processes, retaliating against the agency's in-house
administrative process or overburdening the EEO complaint system. Id.
In arguing that such a finding is appropriate in these cases, the agency
notes that complainant has filed 14 other EEO complaints and that in a
lawsuit in federal court, a federal judge found that some of these claims
were �so lacking in merit that the court must conclude that she has,
and is, pursing these out of vindictiveness....� However, a review of
Commission records reveals that complainant has only filed two other
appeals to this Commission and that, in both, the agency's decisions
against complainant were reversed and remanded. Because the agency
has provided no specific information about those cases of complainant
that have not been before this Commission, we have no basis on which to
judge them. Therefore, we decline to issue a finding of abuse of the
EEO process based on the facts presented in this proceeding.
Accordingly, after a careful review of the record, including complainant's
arguments on appeal, the agency's responses, and arguments and evidence
not specifically discussed in this decision, the Commission VACATES the
agency's final orders and the AJs' decisions and REMANDS the matter to
the agency in accordance with this decision and the ORDER below.
ORDER
The complaints are remanded to the Hearings Unit of the Birmingham
District Office for scheduling of a consolidated hearing in an
expeditious manner. The agency is directed to submit a copy of the
complaint files to the EEOC Hearings Unit within fifteen (15) calendar
days of the date this decision becomes final. The agency shall provide
written notification to the Compliance Officer at the address set forth
below that the complaint files have been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaints in accordance with 29 C.F.R. � 1614.109 and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0900)
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 19848,
Washington, D.C. 20036. 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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 13, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Although not analyzed as such by the agency or the Administrative Judge,
complainant's affidavits and submissions make clear that she believed
that the events described in Complaint 1 constitute harassment, as well
as disparate treatment discrimination.
3 Complainant's claims in Complaint 1 have been organized chronologically
in this decision, although they were not organized in this manner by
the Administrative Judge.
4 Complainant requested a hearing on Complaint No. 97-0332 after 180 days
from the date she filed her complaint had passed and the investigation
was not yet complete.
5 This situation is related to claims 3 and 6.