0120103148
11-23-2010
Helen Hickmon, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Helen Hickmon,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103148
Hearing No. 450-2010-00071X
Agency No. 2003-0549-2009102111
DECISION
On July 20, 2010, Complainant filed an appeal with this Commission from the Agency's July 14, 2010, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
Complainant, a grade level GS-9 Medical Administrative Specialist in Medical Administrative Service in Dallas, Texas alleges that the Agency discriminated against her on the bases of race (Black), sex (female), and age (65) when on February 23, 2009, Complainant learned that she was not selected for the position of Supervisory Medical Support Assistant, GS-679-10, Target 11, which was advertised under Vacancy Announcement No. MPA-09-B4-001.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's Motion for Summary Judgment and issued a decision without a hearing on June 23, 2010. The Agency adopted the AJ's decision.
In her decision finding no discrimination, the AJ found that Complainant had established a prima facie case of discrimination. In so finding, the AJ determined that although Complainant qualified for the position, she was not selected. The selectee was a White male who was at 45 or 46 at the time of the selection and younger than Complainant. The AJ found further that the Agency had articulated a legitimate, nondiscriminatory reason for not selecting Complainant and concluded that Complainant had failed to show by a preponderance of the evidence that the Agency's reason for selecting the selectee was pretextual.
In so concluding, the AJ found that only Complainant and one other applicant (the selectee) were found qualified for the position. Both were referred to the selecting official (SO). The AJ found further that a four-member panel was formed which was comprised of one White female born in 1954, a Black female born in 1962, a Black female born in 1963, and a White male whose birth date was not known. The AJ also found that all panel members rated the selectee higher than Complainant and recommended him to the SO. The AJ also noted that the determining factor in the selection was the selectee's knowledge, skills and abilities (KSA) responses to the Vacancy Announcement. The AJ noted further that the SO determined that the selectee gave more detailed responses which could be more adequately accessed for qualifications and experiences and therefore he received higher scores from the panel. The AJ concluded that the Agency's reasons were sufficiently clear and specific to afford Complainant the opportunity to show pretext but that Complainant did not offer evidence to support a claim of pretext and also did not allege that her qualifications were plainly superior to that of the selectee.
Complainant stated in her affidavit that the Agency discriminated against her based on race and sex, noting that there had never been a Black female supervisor in Medical Administrative Service. ROI at 54. Complainant stated that she was better qualified for the position because she had worked as a grade level GS-7 Supervisory Medical Support Assistant for over 18 years. She left that position after applying and being selected for her current position, Medical Administrative Specialist in February 2006, which was also a GS-7 but had grade level GS-9 potential. Id. at 53. Complainant also stated that the selectee had never worked as a Supervisory Medical Support Assistant as she had.
Complainant stated in her affidavit that after the selectee was chosen, the title of the vacant position was changed to that of Chief of Ward Administration and, also, that there had never been a Black female Chief of Ward Administration. Regarding her age discrimination claim, Complainant stated that she was at the age where she could have retired if she so chose but that she had no intention of retiring presently and chooses to continue working. She stated also that she felt as if part of the reason that she was not selected was because she was at retirement age. Regarding her KSAs, Complainant stated that she had addressed the KSAs. Complainant stated further that she did not go into "great, great" detail and that she could have done so by going way back into her experience but that would have taken up five to six pages. Id. at 54. She stated further that she felt like she needed to discuss the most important part of her work that she had been performing as "acting Chief of Ward Administration." Id. Complainant also stated that the selectee was pre-selected. Id.
Complainant's resume reflects that she had worked as a Supervisory Medical Support Assistant from July 1988 to February 2006, and that she began working as a Medical Administrative Specialist in February 2006. Id. at 105. Complainant's resume also specifically reflects that as a supervisor, her responsibilities included making sure that all wards were covered; preparing daily reports, time cards and memoranda; training and counseling employees; working with management; ensuring that the privacy of all patients and employees were protected pursuant to legislation; scheduling overtime; assignment of duties of transcription employees; and informing employees of all policies, procedures, and changes affecting patient care. Id. The resume also reflects that Complainant had acted as Chief of Ward Administration in the absence of the Chief and as such she had delegated duties and performed other duties assigned by the Service Chief. Id.
In her response to KSA #1, Complainant stated that while working as a Medical Support Assistant and serving as a supervisor, she had trained other employees and had demonstrated a vast knowledge of Agency regulations as it applied to veterans' eligibility. Id. at 107. In her response to KSA #4, Complainant stated that as a supervisor, she had generated reports for bed control for patient admission to the hospital and had also generated workload reports for employees within her section. Id. Complainant does not identify or describe other supervisory experience in her responses to the remaining KSAs. Id.
The selectee's application reflects that at the time of his application, he had served as Acting Chief of the Ward Administration Section from October 2008 and continuing. ROI at 108. His application details his duties as the Acting Chief and reflects that he had worked as an Administrative Officer of the Day from July 2005 to October 2008, as a Medical Support Assistant in the Emergency Room from October 2002 to July 2005, and as a Medical Support Assistant for Inpatient Wards from July 1995 to October 2002. The record also reveals that the selectee responded to each of the five KSAs and related his experience to the KSAs. ROI at 112.
In his affidavit, the SO stated that the determining factor for selection was responses to the KSAs. He further stated that the selectee gave more detailed responses that could be more adequately assessed for qualifications and experience and therefore received a higher score. Id at 54-55. The SO stated further that the selectee provided more detailed examples rather than simply stating the amount of years of experience and restating the KSA criteria. The SO noted, by way of example, that KSA #5 sought to elicit information regarding the ability of a selectee to direct and influence multidisciplinary employees and to apply principles and techniques which were in compliance with Agency directives relating to patient eligibility for inpatient and outpatient services. The SO stated that KSA #5 would offer direct insight into supervisory experience and also direct insight into an applicant's ability to use influence, indirect or direct, over services that the applicant would not be directly supervising. The SO indicated that in her response to KSA #5, Complainant failed to exhibit how she had specific experience commensurate with KSA #5, while the selectee provided specific examples of his experience. Id. at 67. The SO also noted that the selectee described specific roles under which he had applied managerial influence over employees whom he had directly and indirectly supervised in his work experience.
ANALYSIS AND FINDINGS
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. 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, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2).
Because this is an appeal from a decision 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).
Upon review, the Commission finds that the grant of summary judgment was appropriate. Complainant has failed to proffer sufficient evidence to establish that a genuine issue of material fact exists such that a hearing on the merits is warranted. Specifically, the Commission finds that the investigative record was adequately developed; that there are no genuine issues of material fact; and that there were no findings of fact made by weighing conflicting evidence or assessing witness credibility. The Commission notes that a complainant cannot avoid summary judgment by resting on bare assertions, general denials, conclusory allegations or mere suspicion. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.
The record reveals that the four-member selection panel rated the selectee higher than Complainant. ROI at 75. The record also reveals that the Vacancy Announcement for the position described how each candidate would be rated. Id. at 72. In addition, the Vacancy Announcement specifically stated that an applicant's responses to the KSAs would be the primary source used in determining qualifications. The Vacancy Announcement also reflected that the rating would be based primarily on the responses to the KSAs and noted that answers needed to be specific regarding duties performed and education.
The Commission notes that in non-selection cases, pretext may be found where the complainant's qualifications are plainly superior to those of the selectee. See Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Although Complainant's evidence reflects she had worked as a grade level GS-7 Supervisory Medical Support Assistant for over 18 years before becoming a Medical Administrative Specialist, her present position, Complainant has not shown that her qualifications were plainly superior to those of the selectee. Although Complainant had a lengthier history of supervision than that of the selectee, the selectee also had experience as a supervisor. In addition, his supervisory experience was more recent. The selectee's resume also reflects progression in his experience. While both Complainant and the selectee addressed KSAs as required, Complainant did not provide much elaboration regarding her supervisory experience such that it could be shown that her qualifications were plainly superior to those of the selectee.
Further, construing the evidence in a light most favorable to Complainant, Complainant has not shown that the selection resulted from discriminatory animus or that the reasons articulated by the Agency for its actions were mere pretext to hide unlawful discrimination. Proving pretext requires that a complainant show that discriminatory reasons more likely motivated the agency, or that the agency's proffered explanations are not credible. Complainant's bare assertions are not sufficient. The Commission has consistently held that mere assertions are not enough to establish pretext. Richardson v. Department of Agriculture. EEOC Appeal No. 03A40016, (December 11, 2003).
Further, we observe that even if preselection occurred as Complainant suggests, Complainant has not shown that any such preselection was motivated by discriminatory animus. Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986).
At all times, the ultimate burden of persuasion remains with a complainant to demonstrate by a preponderance of the evidence that the agency's reasons were pretextual or motivated by intentional discrimination. Complainant failed to carry this burden.
CONCLUSION
The Agency's finding of no discrimination 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, 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
November 23, 2010
__________________
Date
2
0120103148
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013