01a62744
08-14-2006
Fang-Yuh Hsieh, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Fang-Yuh Hsieh v. Department of Veterans Affairs
01A62744
August 14, 2006
.
Fang-Yuh Hsieh,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A62744
Agency No. 200N-0640-2004103984
Hearing No. 370-2005-00154X
DECISION
Complainant initiated an appeal with this Commission from a February 23,
2006 agency decision which implemented the January 26, 2006 decision of
an EEOC Administrative Judge (AJ) finding no discrimination.
Complainant alleged that the agency discriminated against him on the bases
of sex (male), age (D.O.B. January 10, 1949), national origin (Taiwan),
and reprisal for prior EEO activity when the agency refused to rehire or
reinstate him to the position of Mathematical Statistician when his term
appointment ended and when he was not allowed to compete for the position.
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a hearing before an AJ. The AJ
issued a decision without a hearing (summary judgment).
The record reveals that complainant was selected to fill a limited
term appointment as a Mathematical Statistician in the agency's
Cooperative Studies Program Coordinating Center, Research Service, at
the Menlo Park Division of the agency's Palo Alto Health Care System.
Complainant's original term appointment was from September 18, 1994
to September 17, 1997. The term appointment was extended to September
17, 1998. The record also reveals that complainant's term appointment
was subsequently converted to an excepted Schedule B appointment with a
not-to-exceed date of September 16, 2001. The record reveals further than
in September 2001, complainant was informed that his appointment would
be extended 13 months in order for complainant to finish two research
projects and to give him the opportunity to look for other employment.
Complainant's appointment was extended to October 15, 2002, and was
not renewed.
The record further reveals that complainant filed a complaint prior to
the instant complaint in which he alleged, among other things, that he was
discriminated against when his limited term appointment was not renewed.
On July 16, 2003, the AJ granted summary judgment in favor of the agency,
concluding that the agency had not discriminated against complainant.
We affirmed complainant's appeal in Fang-Yuh Hsieh v. Department of
Veterans Affairs, EEOC Appeal No. 01A40064 (Feb. 5, 2004), req. to
reconsider den., EEOC Request No. 05A40483 (March 19, 2004).
In granting summary judgment in the instant complaint, the AJ first noted
that she agreed with the agency's argument that complainant had failed to
contact an EEO Counselor within 45 days of the alleged discrimination as
required by 29 C.F.R. �� 1614.105(a)(1). The AJ determined that although
complainant had developed a reasonable suspicion of discrimination
as early as February 2004, as demonstrated by complainant's written
statement dated February 28, 2004, he did not contact an EEO Counselor
until August 20, 2004. Nonetheless, the AJ stated that she would assume
arguendo that complainant had made timely EEO Counselor contact.<1>
Regarding complainant's claims, the AJ determined that complainant
was not discriminated against. The record reveals that, Person A, a
Thai female, born August 23, 1972, worked for the agency as a Research
Health Science Specialist. She expressed an interest in September 2003,
in becoming a Mathematical Statistician in September 2003. The record
reveals that after performing satisfactorily during the trial period and
after a determination by the agency Human Resources Management Service
that Person A was qualified, her term appointment was converted to an
excepted, Schedule B appointment with a not-to-exceed date of February
22, 2005.
Complainant has asserted that the agency discriminatorily distorted the
Schedule B appointment process by failing to announce existing vacancies
and advertising for positions assigned to research locations other
than at Menlo Park. Complainant also asserted that the agency provided
budgeting for facilities other than at Menlo Park. Complainant has also
asserted that he was denied discovery regarding the agency budget.
The Commission's regulations allow an AJ to issue a decision without a
hearing when the AJ finds that there is no genuine issue of material
fact. See 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.
Although the initial inquiry in a discrimination case usually focuses
on whether complainant has established a prima facie case, the prima
facie inquiry may be dispensed with when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. In such cases,
the inquiry shifts from whether complainant has established a prima
facie case and proceeds to the ultimate issue of whether complainant has
shown by a preponderance of the evidence that the agency's actions were
motivated by discrimination. See United States 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).
We will assume in this decision, without deciding, that complainant's EEO
Counselor contact was timely. The Commission finds that grant of summary
judgment was appropriate, as no genuine dispute of material fact exists.
The record establishes that the agency did not discriminate or retaliate
against complainant for filing a complaint or for complaining about
discriminatory treatment against others by the agency. Complainant has
not demonstrated that he was denied the opportunity to be hired or
considered for positions within the agency, or that the agency did not
adhere to requisite processes for filling non-competitive positions
for prohibited reasons. The record establishes that the agency could
make research staff appointments without going through the competitive
process, i.e., without announcing vacancies or holding open competition.
Complainant has not shown that the agency's reasons were pretextual.
Further, construing the evidence to be most favorable to complainant,
complainant failed to present evidence that the agency's actions were
motivated by discriminatory animus toward complainant's protected classes.
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant has failed to do so. To the extent that complainant
is contesting the adequacy of discovery, the record shows that the AJ
allowed sufficient time for the completion of discovery and we find that
the record is adequately developed for summary judgment.
The agency's finding of 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
August 14, 2006
__________________
Date
1In a February 28, 2004 statement complainant stated that he knew that
the agency was promoting Person A to a biostatistician position to
take over his job. The record also reveals that on August 19, 2004,
complainant contacted the agency's Human Resources Office and confirmed
that Person A had filled a statistician position.