01a54105
10-12-2005
Deborah Norman, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Deborah Norman v. Department of Veterans Affairs
01A54105
October 12, 2005
.
Deborah Norman,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A54105
Agency No. 2004-0658-2004100548
Hearing No. 120-2004-00653X
DECISION
Complainant timely initiated an appeal from the agency's final order
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, a Kinesiotherapist at the agency's
Hampton, Virginia facility, filed a formal EEO complaint dated December
24, 2003, defined by the agency as alleging that she was discriminated
against on the bases of race (African-American), sex (female), and
reprisal for prior EEO activity when:
Complainant was not selected for the position of Supervisory Prosthetics
Representative, GS-0671-12, Announcement No. MP-49-03 on September
23, 2003.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ noted that complainant applied and was found qualified for the
subject position, but was not interviewed or selected. The AJ stated
that complainant does not contend that her qualifications were superior
to those of the selectee, a reassignment candidate, who had been serving
as a Prosthetic Program Manager at the agency's Northern California
facility for 12 years and who was described as a �combat wounded Disabled
Veteran rated at 80% for the amputation of his leg.� The AJ noted that
complainant claimed the selectee was preselected.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. In reaching this conclusion, the AJ found
that complainant failed to show that her qualifications were plainly
superior to those of the selectee as to require a finding of pretext.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ failed to address the
crux of her case which was that the agency failed to select her under
vacancy announcement MP-29-03, the announcement that was cancelled and
subsequently reissued under vacancy announcement MP-49-03.
In response to complainant's appeal, the agency contends that a claim
regarding vacancy announcement number MP-29-03 was not the subject
of EEO Counseling, was never accepted, and was not investigated by
the agency. The agency noted in its March 17, 2004 acceptance letter
that complainant's complaint was defined as including only a claim of
non-selection occurring on September 23, 2003, for vacancy announcement
MP-49-03. The agency noted that complainant was informed that if she
disagreed with the agency's definition of the complaint, she should
contact the agency's Office of Resolution Management within seven days.
The agency noted that complainant did not challenge the definition
of the complaint within the specified time frame. The agency stated
complainant did not contact the Office of Resolution Management regarding
the framing of her complaint until July 29, 2004, after the completion of
the investigation. The agency argued that complainant waived her right
to challenge the framing of her complaint. Additionally, the agency
claimed that the AJ properly issued a finding of no discrimination with
regard to complainant's claim that she was non-selected for vacancy
announcement MP-49-03.
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, 322-23 (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. 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.
Initially, we address complainant's contention that the AJ failed to
address her claim of non-selection under vacancy announcement MP-29-03.
The record reveals that in a March 17, 2004 letter, the agency accepted
complainant's complaint and defined it as a claim that complainant was
discriminated against based on race, sex, and in reprisal for prior
protected EEO activity when she was non-selected for the position of
Supervisory Prosthetics Representative, GS-0671-12, on September 23,
2003. In its acceptance letter, the agency informed complainant that if
she believed the accepted claim was misdefined she should contact the
Office of Resolution Management within seven days. The record reveals
that complainant did not challenge the definition of the accepted issue
with the agency until after the Report of Investigation was completed
and delivered to her. Upon review, we find that the AJ properly
determined that the subject complaint is limited to complainant's claim
of non-selection for vacancy announcement MP-49-03.
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. We find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
The record reveals that the agency initially offered the Supervisory
Prosthetics position to Person A (White female) who had been the Chief
of Prosthetics of the agency's Buffalo facility; however, she declined to
accept the position. The record shows that after Person A's declination,
the agency offered the same position to the selectee (White male) who had
been employed at the agency's Northern California facility in the same
supervisory position for eleven years prior to the selection at issue.
Construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes.
Accordingly, the agency's final order finding no discrimination 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
October 12, 2005
__________________
Date