0120121640
04-01-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121640
Hearing No. 430-2011-00210X
Agency No. 2004-0659-2010104326
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 1, 2012 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.
BACKGROUND
During the period at issue, Complainant worked as a Clinical Staff Chaplain, GS-12, at the Agency's Veterans Affairs Medical Center in Salisbury, North Carolina.
On September 14, 2010, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (born 1950) when:
on July 26, 2010, she was paid a less than a younger Caucasian male Chaplain, for performing the same duties as the Acting Chief, Chaplain Services.
Following the investigation into her formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On January 23, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In reaching her decision, the AJ found that the following facts based on the evidence developed during the investigation. In March 2012, the Chief of Pastoral Care retired from federal service. The Associate Director of Medical Services (African American male, born 1958) decided that Complainant and another Chaplain ("Chaplain RW") (Caucasian male, born 1966) would rotate as Acting Chief, a GS-13 position.
Chaplain RW was temporarily promoted to Acting Chief from March 28, 2010 to May 8, 2010. He was promoted from GS-12, Step 5 to GS-13, Step 2 for this period. Complainant was temporarily promoted to Acting Chief from May 9, 2010 to July 18, 2010, and was promoted from GS-12, Step 5 to GS-13, Step 2 for this period. However, although the Agency initiated paperwork concerning Complainant's temporary promotion to GS-13 in May 2010, due to administrative mistakes in processing the promotion through the Agency's accounting system, Complainant did not actually get paid at the GS-13 rate during the period she served as Acting Chief. The record shows, however, that she was retroactively paid for the period in question in September 2011. The evidence of record also shows that Complainant received a $3,500 special contribution award for the period in question which Chaplain RW did not receive.
The Associate Medical Director then chose Chaplain RW to be in the Interim Chief, effective July 15, 2010. As Interim Chief, Chaplain RW was again promoted to GS-13, Step 2. Complainant has not challenged this selection decision in the instant complaint.
In her decision, the AJ found no discrimination. The AJ determined that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination on the bases of race, sex and age.1 Specifically, the AJ found that the evidence established that the Agency initiated processing of Complainant's temporary promotion at the time of the promotion, but, due to an administrative error, her temporary promotion was not posted to payroll. Complainant eventually received her pay retroactively when the error was corrected.
The Agency fully implemented the AJ's decision in its final order. 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. 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 does not sit as a fact finder. Id. 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. A disputed 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. Catreet, 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, a hearing is required. 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. See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
After careful review of the record, including Complainant's brief on appeal, we find that she has not established that the AJ erred in deciding this case by summary judgment in favor of the Agency. Complainant does not dispute that she was retroactively paid for the period she served as Acting Chief between May and July 2010. She also does not dispute that she received a $3,500 award for this same period. However, on appeal, she argues that she served as Acting Chief for other periods from 2007 to 2009 without receiving a temporary promotion in contrast to other unidentified "comparators." However, Complainant refused to provide an affidavit during the investigation of her complaint and, even on appeal, has provided no information about these alleged prior periods of discriminatory pay. The evidence of record supports the Agency's claim that administrative errors caused the delay in paying Complainant at the GS-13 level during the 2010 period she was Acting Chief. On appeal, Complainant has not identified material facts in dispute that require a hearing and, while the Agency's extended delay in correcting its accounting errors no doubt harmed Complainant, at least temporarily, there is simply no evidence that what occurred was motivated by discriminatory factors.
Accordingly, the Agency final decision adopting the finding of no discrimination by the AJ is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
April 1, 2014
__________________
Date
1 Significantly, the AJ noted that Complainant did not submit an affidavit on her own behalf during the investigation of her complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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