Visalakshi Malladi, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 13, 2000
01992324 (E.E.O.C. Oct. 13, 2000)

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.