01997101
11-16-2001
Barbara L. Moore, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Barbara L. Moore v. Department of Veterans Affairs
01997101
November 16, 2001
.
Barbara L. Moore,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01997101
Agency No. 97-2297
DECISION
INTRODUCTION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of 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. Complainant alleged in her complaint that
she was discriminated against on the basis of her age (56 at the time
of the alleged discriminatory actions) when, in July 1996, she was
not promoted to the position of Nurse II, and when her Nurse Manager
(S1) refused to cooperate and help complainant file a �rebuttal� to
this nonpromotion decision. For the following reasons, the Commission
AFFIRMS the agency's final decision finding no discrimination.
BACKGROUND
The record reveals the following information pertinent to this appeal.
At all times relevant to this action, complainant was employed as
a Nurse I at the agency's Kansas City, Missouri facility. In July,
1996, the agency's Nurse Professional Standards Board (Board) reviewed
complainant's official personnel folder and Proficiency Report, and
concluded that she was, at that time, ineligible for promotion to the
position of Nurse II. In its Board Action report, the Board indicated
that the reason complainant was not eligible for promotion was her
failure to satisfy several of the required criteria. Specifically,
the Board noted that complainant's personnel records and Proficiency
Report did not indicate that she had met the required Qualification
Standard of having displayed �successful nursing practice which has been
characterized by leadership in improving nursing patient care,� nor the
required clinical skill of �identif[ying], analyz[ing] and resolv[ing]
patient care problems whose resolution results in the significant
improvement of nursing care to individual and/or groups of patients.�
Complainant was subsequently notified by S1 of the Board's decision.
S1 also informed complainant that she could file a rebuttal to the
Board's decision. Complainant contends that S1 informed her that the
filing of a rebuttal was to be processed through S1, and that S1 would
assist complainant in filing her rebuttal. In her affidavit, S1 stated
that she informed complainant of what was needed to be done to seek
reconsideration. S1 stated that she told complainant that complainant
needed to address a memo to the Board asking for reconsideration, and
that complainant needed to examine each of the Qualification Standards
the Board indicated she had not met and address those standards with
examples of how she believed she met them. Complainant did eventually
submit a rebuttal to the Board, but did not do so until January 12, 1997.
The Board rejected complainant's rebuttal as untimely.
Believing she was a victim of age discrimination as described above,
complainant sought EEO counseling and subsequently filed a formal
complaint on April 18, 1997. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge, or, alternatively, to receive a final decision by
the agency. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency found that complainant had established a prima
facie case of age discrimination as to her nonpromotion claim. However,
the agency also found that complainant had failed to prove that the
legitimate, nondiscriminatory reasons provided by the agency for the
nonpromotion were pretextual. The agency also found that complainant
had failed to establish a prima facie case as to her second claim.
Therefore, the agency concluded, the record failed to substantiate
complainant's allegations of discrimination, and it entered a finding
of no discrimination. This appeal followed.
On appeal, complainant contends that the FAD contains factual errors and
omissions, that the agency's proffered reasons for the nonpromotion are
pretextual, and that she has in fact established a prima facie case as
to her second claim and the agency failed to articulate a legitimate,
nondiscriminatory reason for its actions. The agency requests that we
affirm its FAD.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
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).
Applying the standards set forth in Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000), and O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308 (1996), the Commission agrees with the agency that
complainant established a prima facie case of age discrimination as
to her nonpromotion claim. The record reflects that, of the eleven
nurses evaluated by the Board in 1996 for promotion to Nurse II, and
the five who received promotions, three were younger than forty years
of age, and all five were at least four years younger than complainant.
See O'Connor, 517 U.S. at 312-13 (1996) (holding that comparison employee
in ADEA claim need not be outside class of persons protected by ADEA��the
fact that a replacement is substantially younger than the [complainant]
is a far more reliable indicator of age discrimination than is the fact
that [complainant] was replaced by someone outside the protected class�);
EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,
EEOC Notice No. 915.002, � 7(II)(4)-(5) (Sept. 18, 1996).
Once the complainant has established her prima facie case, the burden
shifts to the agency �to produce evidence that [complainant] was rejected,
or someone else was preferred, for a legitimate, nondiscriminatory
reason.� Reeves, 530 U.S. at 142 (citation and internal quotations
omitted). �The burden is one of production, not persuasion; it can
involve no credibility assessment.� Id. (citation and internal quotations
omitted). The agency provided evidence, through the affidavits of the
members of the Board panel who made the nonpromotion decision, that
complainant was not promoted because her personnel file and Proficiency
Report did not reflect that she had performed in a way that satisfied
the Qualification Standards discussed above. During the interviews with
the panel members, the EEO investigator provided each with complainant's
January 12 request for reconsideration, and, setting aside the timeliness
issue, none of the panel members, including the Chairperson, concluded
that complainant's request was sufficient to show that she did in fact
meet the Qualification Standards required for promotion to Nurse II.
The panel members also stated that the persons who had been promoted
did display the type of leadership and problem-solving experience which
satisfied the aforementioned promotion criteria. Accordingly, we agree
with the agency that a sufficient legitimate, nondiscriminatory reason
for the nonpromotion has been articulated.
Upon the presentation of the agency's legitimate, nondiscriminatory reason
for its actions, the burden returns to the complainant to present evidence
sufficient to prove that the legitimate reason offered by the agency
is not its true reason, but is rather a pretext for discrimination.
Reeves, 530 U.S. at 143. Upon examination of the entire evidentiary
record, including complainant's arguments on appeal, we cannot conclude
that complainant has carried this burden. While complainant has claimed
on appeal that the agency's reason is pretextual because she was in fact
sufficiently qualified to warrant promotion, she has presented no evidence
in support of that claim, and does not otherwise challenge to the agency
evidence presented in support of its decision to not promote complainant.
Based on the evidentiary record, we cannot conclude that complainant
has proven that the agency's proffered reason for the nonpromotion was
pretextual in nature.
Also, aside from the evidence establishing her prima facie case,
complainant has presented no evidence that the agency's decision not
to promote her was based at all on her age. As complainant has failed
to provide any evidence which would tend to show that her age played
a role in the Board's decisionmaking process and had a determinative
effect on the outcome, see id. at 141, we conclude that complainant has
failed to establish that her July, 1996 nonpromotion was the result of
age discrimination.
We also agree with the agency that complainant failed to establish a
prima facie case as to her claim that she was discriminated against when
S1 failed to help her file a rebuttal to the NPSB. To establish a prima
facie case of age discrimination, the complainant must show that she was
a member of a class protected by the ADEA, that she was subjected to an
adverse employment action, and that she was treated less favorably than
other similarly situated employees substantially younger than herself.
See Reeves, 530 U.S. at 142; O'Connor, 517 U.S. at 312-13. We note
that it is not necessary for complainant to rely strictly on comparative
evidence in order to establish an inference of discriminatory motivation
necessary to support a prima facie case. O'Connor, 517 U.S. at 312;
EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers
Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996). However,
the ultimate burden of persuading the trier of fact that the agency
intentionally discriminated against complainant remains at all times
with complainant. Reeves, 530 U.S. at 143 (quoting Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Complainant claimed in her complaint that two other Nurses, N1 (28 years
old at the time of complainant's nonpromotion) and N2 (49 years old at
the time of complainant's nonpromotion), were assisted by S1 in filing
rebuttals to adverse Board decisions. However, the evidence presented
by the agency does not support this claim. S1 stated in her affidavit
that she did not help N1 or N2 file rebuttals. S1 also stated that the
burden of completing a rebuttal is on the employee, not their supervisor,
and, while S1 attempted on several occasions to prompt complainant to
submit the necessary information for her rebuttal, complainant failed
to do so. The agency produced both documentary and testimonial evidence
that, at the time of complainant's nonpromotion, the established agency
policy concerning the filing of requests for reconsideration of Board
decisions was that any Nurse aggrieved by a Board decision personally
bears the burden of initiating the decision reconsideration process.
Furthermore, there is no evidence indicating that either N1 or N2 prepared
or submitted a rebuttal from an adverse promotion decision in 1996.<1>
N2 stated in her interview with the EEO investigator that she has never
filed a rebuttal of a Board decision. Nor does the record show that N2
received an adverse promotion decision from the Board in 1996. We further
note that complainant did not provide any noncomparative evidence that
would allow an inference that S1's failure to assist complainant was
motivated by discrimination. Therefore, we conclude that the agency
correctly found that complainant failed to establish her prima facie
case as to this claim.
Therefore, after a careful review of the record, including complainant's
contentions on appeal as well as arguments and evidence not specifically
addressed in this decision, the Commission AFFIRMS the FAD finding no
discrimination.
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
November 16, 2001
Date
1 The EEO investigative file does not contain any indication that N1
was interviewed or otherwise contacted in relation to this complaint.
We note this omission in light of the evidence in the record establishing
that N1 was also a recipient of an adverse promotion decision by
the Board in 1996, only a month after complainant's nonpromotion.
However, of the two comparison employees identified by complainant
in her complaint, the agency only interviewed N2, the employee who
did not receive an adverse promotion decision by the Board in 1996.
Nevertheless, as there is sufficient evidence in the record to support
a finding of no discrimination, no evidence showing that N1 did in
fact file a rebuttal with the Board, and because complainant does
not challenge this omission, we do not address this issue further in
this appeal.