01a51326
05-06-2005
Alice Ritchie, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Alice Ritchie v. Department of Veterans Affairs
01A51326
May 6, 2005
.
Alice Ritchie,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51326
Agency No. 200H-1719
Hearing No. 160-A1-8628X
DECISION
Complainant timely initiated an appeal from an agency final order
finding no discrimination concerning her equal employment opportunity
(EEO) complaint of unlawful 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. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.<1>
During the relevant time, complainant was employed as a Staff Nurse II,
at the agency's Psychiatric Unit, Northport Veterans Administration
Medical Center (VAMC) in Northport, New York. On February 22, 2000,
complainant initiated EEO Counselor contact, and subsequently filed a
formal complaint on April 1, 2000. Complainant claimed that she was
discriminated against on the bases of age (D.O.B. 10/14/37) and in
reprisal for prior EEO activity.
On February 21, 2001, the agency issued a document identified as "Notice
of Receipt and Partial Acceptance and Partial Dismissal of Additional
Evidence of EEO Complaint." The agency determined that complainant's
complaint was originally comprised of three claims, which the agency
identified in the following fashion:
(1) on February 4, 2000, she was informed that the Nursing Standards
Professional Board (NSPB) refused to rescind its original decision not
to promote her to Nurse III;
(2) on February 4, 2000, the NSPB informed complainant that her 1998-1999
proficiency boarding was forthcoming but as of the present date, she
has not received it; and
(3) on October 5, 2000, complainant received a memorandum from the
NSPB Chairperson that had been dated approximately six months earlier,
on April 18, 2000. The memorandum stated that complainant met the
educational requirements but not the clinical skills needed for promotion
to Nurse III Grade.
The agency noted that on January 19 and 26, 2001, complainant requested
that the instant complaint be amended to include three additional claims:
that she was discriminated against on the bases of age and in reprisal
for prior EEO activity when:
(4) on January 3, 2001, complainant learned that the NSPB action dated
January 26, 2000 (for proficiency period of May 1998 to May 1999) which
she received in August 2000, erroneously stated that she did not possess
a Non-Nursing Degree. ;
(5) as of the present date, the NSPB action for the proficiency period
of May 1999 to May 2000 has not been boarded; and
(6) on January 27, 2000, complainant received a memorandum from the NSPB,
referring to a Board action of December 1, 1999. <2>
The agency accepted complainant's requests that her complaint be amended
to include claims (4) - (6). The agency dismissed claims (4) and (6)
pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO
Counselor contact. The agency accepted claims (1), (2), (3), and (5)
for investigation.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Thereafter, the AJ issued a Notice of
Intent to Issue a Decision Without a Hearing, allowing the parties to
file a written response to the Notice. The record reveals that only
the agency responded.
On August 27, 2004, the AJ issued a decision without a hearing, finding
no discrimination. The AJ concluded that complainant failed to establish
a prima facie case of age discrimination. Specifically, the AJ found
that complainant failed to demonstrate that similarly situated employees
not in complainant's protected class were treated differently under
similar circumstances. Regarding complainant's reprisal claim, the AJ
found that complainant failed to establish a prima facie case of reprisal.
The AJ found that complainant failed to show a nexus between her protected
activity and the adverse treatment. The AJ concluded that complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination and/or retaliation.
Furthermore, the AJ stated that she would not second-guess the agency's
business decisions.
The agency's final order dated March 8, 2005, implemented the AJ's
decision.
Claims (1), (2), (3) and (5)
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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. See 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. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
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. See St. Mary's Honor Center 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. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Regarding claim (1), the record contains an affidavit from the Associate
Director for Patient Care Services (AD), who states that while she
took no part in the NSPB's decision making process, complainant was not
promoted to a Nurse III position because of �[Complainant's] ability or
lack of to meet the criteria." The AD stated that the NSPB's criteria is
"very clear." The AD stated that what would be considered relevant in
complainant's case "is the time frame for information and activities,
and the time frame for which that information would be used." The AD
stated that complainant provided outdated material relevant to her
current proficiency and evaluation. Specifically, the AD stated that
complainant attempted to obtain restitution for determinations made five
or six years previously, prior to the AD's arrival at the agency facility.
Furthermore, the AD stated that complainant's age was irrelevant in this
matter because "age is not a criteria for promotions."
The record also contains an affidavit from one of the NSPB members (M1),
who stated that complainant was not promoted to a Nurse III position
because she did not meet the standards as specified in a qualitative
standards directive. Specifically, the M1 stated that complainant
did not make any significant changes in her nursing practice. The M1
stated that complainant wanted the NSPB "to go back years when she'd
said she was not given credit for what she thought she should have been,
but you can't do that."
Regarding claim (2), the AD stated that when in 1998, she joined
the Northport VAMC, she became aware of the late proficiencies, and
indicated that it was a fundamental concern to her. The AD noted that
the proficiencies of complainant and numerous other employees were tardy;
and that such delay is unacceptable. The AD stated that upon her arrival,
this issue was something that �had to be worked on immediately, and that
was something that we did work on immediately.�
Regarding claim (3), the M1 stated that there was a typographical error
in the NSPB's memorandum dated April 18, 2000. The M1 stated that by
the time �we realized that there was an issue, it was reissued.� The
M1 stated that �it had to be redone and corrected with new signatures.
This was done on 8-28, and [complainant] got it on 10-5.�
Regarding claim (5), the record contains an affidavit from complainant's
direct supervisor (S1), who stated that she did complainant's evaluation
for the period of May 1999 to May 2000. The S1 further stated that on
February 8, 2000, she sent an e-mail to complainant "letting her know
that her proficiency was due into the Nursing Office for typing in early
April, requesting her input and asking that she do so in writing to me by
mid March." The S1 stated that complainant's proficiency was late but "I
did take it when I received it and we did discuss it." Furthermore, the
M1 stated that there was no delay in boarding complainant's proficiency
for the May 1999 to May 2000 period.
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for its actions. Complainant has not shown
that the agency's articulated reasons were a pretext for discrimination.
Accordingly, the agency's final order implementing the AJ's decision
finding no discrimination concerning claims (1), (2), (3), and (5)
was proper and is AFFIRMED.
Claims (4) and (6)
In claim (4), complainant claimed that she was discriminated against on
the bases of age and in reprisal for prior EEO activity when she learned
that the NSPB action dated January 26, 2000 (for proficiency period of
May 1998 to May 1999) which she received in August 2000, erroneously
stated that she did not possess a Non-Nursing Degree. In claim (6),
complainant claimed that she was discriminated against on the bases of
age and in reprisal for prior EEO activity when on January 27, 2000,
complainant received a memorandum from the NSPB, referring to a Board
action of December 1, 1999. In a partial dismissal dated February 21,
2001, the agency dismissed claim (4) and (6) pursuant to 29 C.F.R. �
1614.107(a)(2), on the grounds of untimely EEO Counselor contact.
The matters identified in claims (4) and (6) purportedly occurred in
August 2000 and in January 2000, respectively. However, complainant
did not raise these matters until January 2001, when she requested that
her complaint be amended to include these claims. Complainant failed
to present adequate justification pursuant to 29 C.F.R. �1614.105(a)(2),
for extending the limitation period beyond forty-five days. Accordingly,
the agency's decision to dismiss claims (4) and (6) on the grounds of
untimely EEO Counselor contact was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (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
May 6, 2005
__________________
Date
1The record reflects that an Administrative
Judge issued a decision finding no discrimination on August 27, 2004.
On appeal, the agency asserts that although an accompanying Certificate
of Service made reference to an agency complaint adjudication office
(OEDCA), the Administrative Judge did not send a decision to that office.
The agency notes that not having received a final order from OEDCA
within the forty-day time period identified in 29 C.F.R. � 1614.110(a),
complainant filed an appeal from the decision of the Administrative Judge.
The agency states that on March 8, 2005, OEDCA finally received a copy
of the Administrative Judge's Decision, and that on the same date,
the agency issued a final order implementing the decision.
2For purposes of clarity, the Commission identifies these claims as claims
(1) - (6).