0120132677
08-20-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120132677
Hearing No. 560-2012-00054X
Agency No. 2003-0635-201102355
DECISION
Complainant filed an appeal from the Agency's June 3, 2013 final order concerning her equal employment opportunity (EEO) complaint. She alleged 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Psychologist at the Agency's VA Medical Center Mental Health Services / Substance Abuse Treatment Center facility in Oklahoma City, Oklahoma.
On April 27, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity under Title VII, when:
1. On March 10, 2011, the Agency notified Complainant that she would not receive her non-competitive promotion to GS-13 as a Staff Psychologist in a timely fashion;
2. On March 1, 2011, Complainant learned her official recorded performance appraisal rating was different than the rating on the copy provided to her.
The pertinent record shows the following undisputed facts. Complainant's first-line supervisor was the Administrative Director (S1) (Caucasian, female, prior unrelated EEO). Her second-line supervisor was the Chief, Psychology Service (S2) (Caucasian, male, no prior EEO). Both management officials were aware of Complainant's race and sex.
Claim 1 Failure to promote in a timely manner
On February 1, 2009, Complainant began her employment as a Clinical Psychologist on a temporary appointment as a GS-12.
At the time of her initial appointment, Complainant had not received her license as a Psychologist. In order to hold a permanent position or a position as a Psychologist, the employee had to be eligible and credentialed by the Professional Standards Board (PSB). The Agency process requires a series of administrative and technical steps to effectuate a promotion. Those steps include verification of credentials by the Credentialing Office, recommendation by the supervisor and review by the PSB. This multi-step process was implemented in 2006.
Complainant passed her licensure examination in November of 2010. On December 8, 2010, S2 sent an email inquiring about the progress of Complainant's licensure. In that email, S2 told Complainant "We want to be sure to put you in for a grade increase and for independent privileges when you receive your license."
The record is not clear as to the exact date Complainant's professional license was "effective." The record reflects that Complainant became a licensed psychologist effective January 6, 2011, but Complainant's license form had to be resubmitted because she had inadvertently placed the wrong year on her check. Complainant notified the Agency that her professional license became effective on January 11, 2011.
On January 28, 2011, S2 sent a memorandum to the credentialing office to start the process for promotion, but he referenced GS-12, instead of GS-13. The credentialing office sent Complainant an application package for promotion, which Complainant completed and returned to the credentialing office on February 15, 2011.
Complainant inquired of her coworkers about their experience in getting promoted. She averred that she was told that none had been required to meet the new criteria as a prerequisite to promotion.
On March 10, 2011, Complainant met with S1 and S2, who discussed with Complainant the timeliness of Complainant's documentation of her clinical work and the status of her promotion. Complainant stated that she was told by S1 that she was not being promoted due to late documentation and that S2 concurred. Complainant then told them that she thought she was being discriminated against, because no one else had been denied promotion due to late documentation. She asked S1 and S2 to put their reasons in writing as to why she was not getting promoted. S1 refused, stating that she needed more time. S2 stated that "you have given us feedback that we did not have before, and we need to think it over, and we'll get back to you shortly."
When Complainant received no response from S1 and S2 by the next morning (March 11, 2011), she decided to go to the local EEO Office. The EEO representative provided Complainant with the 1-800 EEO contact number. Complainant stated that the EEO representative also asked Complainant to wait because the EEO officer thought there was some miscommunication and wanted to contact Complainant's supervisor first.
On March 14, 2011, Complainant contacted the EEO Counselor via the 1-800 Agency EEO telephone number. On March 17, 2011, the EEO counselor notified the Agency facility Chief of Staff of the EEO contact by Complainant. Report of Investigation (ROI), p.39.
Complainant received an email outlining the promotion criteria, which included nine items needed to be considered for promotion. The conversion was a multi-step process. The Agency received the requisite supporting documentation from the outside references on March 22, 2011. ROI, p.152.
On March 31, 2011, the PSB met. The next day, both S1 and S2 formally recommended Complainant for promotion. She was then converted to a permanent position, from her temporary conditional position, effective April 10, 2011. On April 12, 2011, the PSB issued a "Board Action," which recommended Complainant's promotion to a GS-13. ROI, pp 189-190. On April 19, 2011, the Promotion Board Action was approved by the MHA Director. On April 24, 2011, Complainant's promotion to GS-13 was made effective.
Complainant named four comparators. She alleged that a Caucasian male was treated more favorably. He received his promotion in 2002, prior to the imposition of the new standards. Three other named individuals worked in different programs and for other supervisors. It took five weeks for one of the comparators to be licensed and six months and eight months for the other two comparators. ROI, pp 154 to 155.
The record does not show any other similarly situated psychologists who were credentialed with a quicker turnaround during the relevant period under the new credentialing process.
Claim 2 Rating Change
Complainant claimed that S1 required her to sign a blank appraisal form and told her that she (S1) would have the same information typed on the form. Complainant stated in her deposition that Caucasians were not required to sign blank appraisal forms. On March 11, 2011, Complainant contacted the EEO manager.
Complainant received a "fully successful" rating for the period ending September 30, 2009. The rating was made final on November 12, 2009.
In her affidavit, Complainant averred that S1 told her that Complainant was to receive "Exceptional in three Elements, and Fully Successful on two Elements, overall Fully Successful." ROI, p. 119. Complainant claims S1 changed the rating on one of the elements from "excellent" on the draft appraisal discussed with Complainant, to "fully successful" on the final appraisal filed in the Complainant's Official Personnel File. Complainant claimed that the three Exceptional Ratings were not the same three that were verbally communicated or "agreed upon". ROI, p.120. Complainant acknowledged that the overall rating was "fully successful" before and after the alleged alteration.
Complainant's supervisors stated that any discrepancy between the draft appraisal and the final was due to a clerical error.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before a United States Equal Employment Opportunity Commission Administrative Judge (AJ).
The AJ Decision
Over Complainant's objections, the AJ assigned to the case granted the Agency's August 27, 2012 motion for a decision without a hearing.
The AJ found that Complainant failed to show that any similarly situated comparators not of her race or sex were treated more favorably. The AJ found that none of the four named comparators were promoted during the same time frame or promoted under the same supervisors.
Next, the AJ reasoned, assuming arguendo, that Complainant established her prima facie claims, "she cannot show that the Agency's processing of her promotion was unduly delayed, or that its reasons why it took the time it did were false." The AJ found that Complainant's promotion occurred within approximately three months from the date of her receipt of her license. By comparison, it took six to eight months for two of her comparators to receive their promotions.
With regard to the reprisal claim, the AJ found that Complainant failed to show that she was aggrieved or subjected to an adverse action. The AJ noted that Complainant was recommended for her GS-13 promotion 28 days after she made an informal EEO complaint on March 14, 2011. The AJ found that "Complainant failed to show that her EEO activity delayed the processing of her promotion" and "failed to show she suffered any actionable harm."
With regard to the claim that she was forced to sign a blank appraisal form that was subsequently altered in one category, the AJ found that she pointed to no harm that she suffered as a result of having to sign a blank appraisal form. The AJ found that, assuming that Complainant established her prima facie claim, she failed to show the Agency's reason (clerical error) was a pretext for discrimination. The AJ found that "Complainant produced no evidence that the error in her appraisal was made for a discriminatory purpose and on account of her race." The AJ entered judgment in favor of the Agency.
The Agency subsequently issued a final order adopting the AJ's decision.
This appeal followed.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."). We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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). 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, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
Initially, we note that the record includes the Agency's Motion for Summary Judgment, Complainant's Response and the documents which are referenced in this decision.
Disparate Treatment / Race, Sex and Reprisal
Section 717 of Title VII states that "all personnel actions affecting employees or applicants for employment in executive agencies . . . shall be made free from any discrimination based on race, color, religion sex, or national origin." Similarly, a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). To prevail in a disparate treatment claim, Complainant must establish that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
With regard to the reprisal claim, the record shows Complainant advised her supervisors on March 10, 2011, that she believed that she was being discriminated against. She made EEO contact in this action on March 11, 2011 and on March 14, 2011. For purposes of our analysis of claim 1 (delayed promotion), we will presume that Complainant established her prima facie claims with regard to her race, sex and reprisal claims. With regard to claim 2 (changed appraisal and blank form), the record does not show an adverse personnel action or actual harm to Complainant. Further, there was no nexus because the incident at issue occurred prior to any EEO activity by the Complainant. However, the prima facie inquiry may be bypassed, where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 (1983).
The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, the Agency stated the promotion was made effective shortly after the credentialing was approved and the effective date was contingent on the completion of the promotion process and the time it took for the papers to be processed. With regard to claim 2, management attributed the change in the appraisal to a clerical error.
To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
In this case, Complainant offered no evidence, and the record does not reflect any evidence, that challenged the Agency's stated reasons. Instead, she states that there are disputes as the effective date of her credentialing and disputes whether she was subjected to harsher standards. The testimony is undisputed, however, that: 1) she had been told as early as December 8, 2010 of management's intention to promote her; 2) management abided by the credentialing standards and process, which took time; and 3) Complainant received her promotion in less time than others outside of her protected group.
Looking at all of the evidence in the light most favorable to Complainant, there is no relevant evidence that would show that any of the subject actions were based on Complainant's race, sex or reprisal for EEO activity.
After a careful review of the record, we agree with the conclusion of the AJ that there was no genuine dispute of material fact with regard to the claims in the instant complaint. Therefore, we find that judgment as a matter of law for the Agency was appropriately entered in this case.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order.
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 tends 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, 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 20, 2015
__________________
Date
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