01a53916
09-28-2005
Linda R. Wyatt, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, (Center for Disease Control and Prevention), Agency.
Linda R. Wyatt v. Department of Health and Human Services
01A53916
September 28, 2005
.
Linda R. Wyatt,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
(Center for Disease Control and Prevention),
Agency.
Appeal No. 01A53916
Agency No. CDC-AHRC-016-04
Hearing No. 100-2005-00014X
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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
During the relevant time, complainant was a Human Resources Assistant,
GS-203-7-7, at the agency's Human Resources Management Office in Atlanta,
Georgia. On January 8, 2004, complainant initiated contact with the EEO
office, claiming discrimination on the bases of race, color and age.
Informal efforts to resolve complainant's concerns were unsuccessful.
On April 6, 2004, complainant filed the instant formal complaint.
On June 1, 2004, the agency issued a partial dismissal. Therein, the
agency determined that complainant's instant complaint was comprised of
the following six claims:
(1) on March 24, 2004, she was notified she was not selected for the
Personnel Security Specialist position, GS-0080-7/9, advertised under
Vacancy Announcement Number DE2-04-889;
(2) on March 22, 2004, she was notified that she was not selected for
the Human Resources Specialist position, GS-201-12/13, advertised under
Vacancy Announcement MP1-04-860;
(3) on March 2, 2004, she was notified that she was not selected for
the Human Resources Specialist position, GS-201-12, advertised under
Vacancy Announcement MP1-04-860;
(4) on January 30, 2004, she was notified that she was not selected for
the Human Resources Specialist position, GS-0201-13, advertised under
Vacancy Announcement MP1-04-716;
(5) on January 5, 2004, she was notified that she was not selected for
the Human Resources Specialist position, GS-201-9/11, advertised under
Vacancy Announcement M2-04-657 (re-announced from previous July 2003
Vacancy Announcement MP2-03-1164); and
(6) during the years of 2000-2001, her requests to take several CDC
training classes, including a refresher Excel class, were denied although
other staff members were allowed to take courses that required travel.
The agency accepted claim (5) for investigation. The agency dismissed
claims (1) - (4), pursuant to 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim. Specifically, the agency found that complainant was
not aggrieved and suffered no harm because she did not have the requisite
skills for the subject positions. The agency dismissed claim (6) pursuant
to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO Counselor
contact. The agency concluded that the alleged discriminatory events
occurred during the years of 2000-2001, but complainant did not initiate
EEO Counselor contact until January 8, 2004, beyond the forty-five-day
limitation period.
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 agency thereafter filed a motion for
a summary judgment.<1> The record reflects that on March 3, 2005,
complainant began a hearing which he identified as a �continuation of
the investigatory process� and that complainant was being provided with
�an opportunity to be heard on her complaint and thereby supplement
the investigative record through the examination and cross examination
of witnesses.� However, after hearing complainant's testimony, the
AJ then granted the agency's motion for summary judgment, finding no
discrimination.
In his decision, the AJ found that complainant did not establish a prima
facie case of race, color or age discrimination because she failed to
establish that she was qualified for the position of Human Resources
Specialist, GS-201-9/11. The record reflects that the Human Resources
Specialist (Specialist) stated that she was responsible for rating
the candidates, including complainant, for the subject position.
The Specialist further stated that she rated complainant as not
qualified for the subject position because she lacked the one-year of
specialized experience. Specifically, the Specialist stated that the
subject position required one-year of specialized experience in the full
range of payroll functions. The Specialist stated that while rating the
candidates, she was unaware of their race. Further, the AJ noted that
while the selectee had payroll experience, there was no evidence in the
record indicating that complainant had payroll experience. Finally,
the AJ found that complainant did not provide evidence which leads to
an inference of race, color or age discrimination.
The agency's final order, dated April 5, 2005, implemented the AJ's
decision finding no discrimination regarding claim (5).
Claim (5)
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a 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.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. 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); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for its
employment actions. The record reveals that in her testimony, the
Specialist stated that she did not discriminate against complainant
based on her race, color or age. After a careful review of the record,
the Commission finds that the AJ's findings of fact are supported by
substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present evidence
that the agency's actions were motivated by discriminatory animus toward
complainant's race, color or age. We discern no basis to disturb the
AJ's decision.
After a careful review of the record, we AFFIRM the agency's final order,
implementing the AJ's finding of no discrimination.
Claims (1) - (4) and (6)
Regarding claim (6), complainant claimed that she was discriminated
against on the bases of race, color and age when during the years of
2000-2001, her requests to take several CDC training classes, including
a refresher Excel class, were denied although other staff were allowed
to take courses that required travel. The agency dismissed claim (6)
pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO
Counselor contact.
The record reveals that the alleged discriminatory event occurred
during the years of 2000-2001, but that complainant did not initiate
contact with an EEO Counselor until January 8, 2004, which is beyond
the forty-five-day limitation period. On appeal, complainant presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Therefore, we find that the
agency properly dismissed claim (6) for untimely EEO Counselor contact.
Regarding claims (1) - (4), complainant claimed that she was discriminated
against on the bases of race, color and age when: on March 24, 2004,
she was not selected for the Personnel Security Specialist position,
GS-0080-7/9, advertised under Vacancy Announcement Number DE2-04-889
(claim (1)); on March 22, 2004, she was not selected for the Human
Resources Specialist position, GS-201-12/13, advertised under Vacancy
Announcement MP1-04-860 (claim (2)); on March 2, 2004, she was not
selection for the Human Resources Specialist position, GS-201-12,
advertised under Vacancy Announcement MP1-04-860 (claim (3)); and on
January 30, 2004, she was not selected for the Human Resources Specialist
position, GS-0201-13, advertised under Vacancy Announcement MP1-04-716.
In a partial dismissal, dated June 1, 2004, the agency dismissed claims
(1) - (4) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state
a claim. The agency found that complainant was not aggrieved because
she did not have the requisite skills for the subject positions.
We find that the agency erred in dismissing claims (1) - (4) for failure
to state a claim because complainant has alleged a harm to a term,
condition or privilege of her employment. In dismissing claims (1) - (4),
the agency articulated a reason that goes to the merits of these claims,
and is irrelevant to the procedural issue of whether she has stated a
justiciable claim. See Ferrazzoli v. USPS, EEOC Request No. 05910642
(August 15, 1991). Consequently, we find that complainant was aggrieved
by the non-selections at issue and that the agency improperly dismissed
claims (1) - (4) for failure to state a claim.
In summary, the agency's final order implementing the AJ's finding of no
discrimination regarding claim (5) is AFFIRMED. The agency's dismissal
of claim (6) on the grounds of untimely EEO Counselor contact is AFFIRMED.
The agency's decision to dismiss claims (1) - (4) for failure to state
a claim is REVERSED. Claims (1) - (4) are REMANDED to the agency for
further processing in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims (claims (1) - (4))
in accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
September 28, 2005
__________________
Date
1The record does not contain the agency's
motion for a summary judgment.