0120121712
08-23-2012
Joan Gates, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joan Gates,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121712
Hearing No. 200P-0537-2010100769
Agency No. 200P05372010100769
DECISION
On February 27, 2012, Complainant filed an appeal from the Agency's January 25, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Records Librarian at the Agency's Jesse Brown Medical Center facility in Chicago, Illinois.
On February 4, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when:
1. On November 24, 2009, she was informed that her title had been changed from Medical Records Librarian, Series 0669 to Medical Records Clerk, Series 0675
2. In 2010, her performance was evaluated; and
3. On November 22, 2010, when her supervisor inquired regarding her backlog.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation 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 assigned to the case granted the Agency's May 6, 2011, motion for a decision without a hearing and issued a decision without a hearing on December 14, 2011. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The record developed during the investigation indicates that Complainant first began working for the Agency on June 18, 1985, as a Medical Records Technician, in a temporary position. Thereafter, on September 25, 1988, Complainant's position was converted to a career conditional position as a Medical Records Librarian. In 2008, the Chief of Health Information Management Systems, where Complainant worked, determined that Complainant's position description was out of date. Management worked with the Classification Unit in Human Resources. Together they determined that the duties Complainant was performing did not match the Office of Personnel Management (OPM) occupational code (0669) properly associated with the job title Medical Records Librarian. A special board was convened that determined that based on the duties Complainant performed at the Agency, namely coding and other staff duties, she should be converted to the position of Medical Records Technician. The Agency determined that because all other Coding and Medical Records staff fell under the 0675 series, Complainant should also be converted to that series and a job title which accurately reflected her job duties. On June 7, 2009, Complainant was reassigned as a Medical Records Technician, a position she currently holds at the Agency's Jesse Brown Medical Center.
The record further indicates that on November 22, 2010, Complainant received an inquiry from her supervisor asking her to explain her backlog of cases dating back to February 2010 and to identify any of her additional responsibilities. In a letter dated November 26, 2010, Complainant responded indicating that from August 2009 through January 2010, she was without sufficient assistance from other staff to complete her work. There is no evidence of record, nor does Complainant allege, that she received any discipline or other adverse action following the November 22, 2010 inquiry. Complainant also challenges her December 2010 performance evaluation which rated her exceptional in three areas and fully successful in other areas.
Based on this evidence, the AJ determined that the Agency's management witnesses provided legitimate, nondiscriminatory reasons for the disputed actions, which Complainant failed to prove were pretext for race or gender discrimination. The AJ also concluded that there was no evidence supporting Complainant's claim that her supervisor's inquiry regarding her backlog was in retaliation for prior protected activity.
ANALYSIS AND FINDINGS
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). 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and Complainant has not identified any disputes of material fact.
Here, we agree with the AJ's ultimate finding of no discrimination. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Complainant may establish a prima facie case of discrimination based on race and/or gender, by demonstrating that (1) she is a member of a protected class, (2) she was subjected to adverse treatment, and (3) she was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003), Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). It is not necessary, however, for Complainant to rely strictly on comparative evidence to establish an inference the Agency was motivated by unlawful discrimination. Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2003); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); and EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996). The burden then shifts to the Agency to refute the initial inference of discrimination raised by the prima facie case by articulating a legitimate, nondiscriminatory reason for the decision at issue. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of discrimination on any alleged basis, we find the Agency's witnesses articulated legitimate, nondiscriminatory reasons for the conduct made as detailed above. Complainant failed to show that those reasons are pretext for discrimination. In reaching this conclusion, we note that Complainant failed to demonstrate that any similarly situated individual was treated more favorably than Complainant when she was converted to a job which accurately reflected the duties she performed for the Agency or that other employees with similar job performance received a more favorable performance appraisal. While Complainant points to a male comparator (white male) who was assigned the position of Medical Records Librarian in 1977, the evidence shows that he too was reassigned in January 2000 to another job title and series that more accurately reflected his actual duties. Moreover, Complainant has no presented any evidence that would suggest that the inquiry into her backlog had any nexus to protected activity or that it even of a sufficiently severe nature establish actionable harassment. Accordingly, we find that Complainant has not established pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final Agency decision finding no discrimination.
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
August 23, 2012
__________________
Date
2
0120121712
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121712