0720070011
06-25-2007
M. Justina Moseley, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
M. Justina Moseley,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0720070011
Hearing No. 120-2005-00160X
Agency No. DON 04-00183-41
DECISION
INTRODUCTION
With its Final Order dated October 25, 2006, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's finding of 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 agency also requests that the Commission
affirm its rejection of the relief ordered by the Administrative Judge.
For the following reasons, the Commission VACATES the agency's Final
Order and REMANDS the matter.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
employed as a GS-9 Nurse Educator at the agency's Branch Medical
Clinic, Naval Air Station Oceana, in Virginia Beach, Virginia.
Complainant initiated contact with an EEO Counselor on February 10,
2004, and subsequently filed a formal EEO complaint, alleging that the
agency discriminated against her based on race (African-American), color
(Black), and reprisal for prior EEO activity1 when, in January 2004, she
learned that the agency's Position Management Review Board (Board)2 did
not approve her accretion-of-duties promotion. Complainant alleged that
she performed higher level duties, but received GS-9 level wages while
others, who are outside of her protected race class and worked in her
department, have been promoted. Complainant stated that the comparators
occupy positions as Community Health Specialists, work in a different
building from her (the Medical Center), were hired into their higher level
positions between 1999 and 2001, supervision is a part of their position
descriptions although they do not actually supervise, she does more work
than they do, and they fill-in for her as needed and vice versa.
The agency conducted an investigation of complainant's claim, during which
complainant, the Oceana Officer-in-Charge (S1), the Portsmouth Social
Director for Nursing (S2) who was a member of the Board, and a Management
Analyst/Position Classification Specialist (PC Specialist) gave statements
under oath or affirmation in a fact-finding conference. S1 stated that
he submitted a request for reclassification of complainant's position
with consideration of a grade increase, accompanied by a revised position
description. He said that he does not make final decisions on civilian
promotions and that he heard indirectly that budget constraints were
the reason for the promotion denial by the Board. The PC Specialist
said that she gave an "advisory" classification of the revised position
description at the GS-10 level. The PC Specialist explained that the
classification was dependent on the existence of funding to support
the position. She said she participated in the Board meeting as an
advisor and that the Board denied the promotion because there were no
funds to support it. The PC Specialist stated that she had to instruct
complainant's supervisors to remove the preventive health assessment
program tasks from her duties due to the fact that the agency could not
compensate her for them.
S2 testified that since complainant came from his directorate, he served
as the "advocate" for her promotion before the Board. He said that,
in preparation for the Board meeting, he consulted with S1 about the
availability of an "offset" to fund her promotion because he knew the
Board would question him about the funding.3 He said that S1 told him
that there was no money in the Oceana budget to offset complainant's
promotion at that time. S2 also testified that the Board considered
whether, in fairness, it could afford to promote all of the GS-9
Nursing Educators4 and it could not do so. Therefore, S2 testified that
complainant's promotion was denied based on the lack of funding, and
the Board also decided that it could not allow complainant to continue
to perform the duties above her pay level.
The record contains a personnel action form dated July 14, 2003, on which
S1 and the Portsmouth Medical Director (S3) requested "reclassification
of [complainant's position description] to reflect [complainant's]
current duties with consideration of grade increase" and stated that
"military/GS staff will have to augment the duties and responsibilities of
[complainant's] position on a part-time basis" if the request was denied.
In addition, the record contains a memorandum from the PC Specialist
stating that complainant's revised position description was compared
against Office of Personnel Management standards and classification at
the GS-10 level was advised.
Further, the record contains a Board attendance roster for the December
17, 2003 Board meeting indicating that S2 was "excused"5 from the meeting,
as well as minutes from the December 17 meeting, and a statement from
the recorder for the meeting. The meeting minutes indicate that the
Board approved 17 promotion actions, deferred two actions, deleted
one action, made a reassignment on one action, and disapproved one
(complainant's). The statement from the meeting recorder indicates that
the Board denied complainant's promotion request because it concluded
that a military nurse could perform the GS-10 functions of the position.
The record also contains a memorandum dated May 20, 2004 to complainant,
instructing her not to perform any duties above her GS-9 level because
the agency was unable to compensate her for such performance.
The record also reveals that another GS-9 Nurse Educator (C1) was promoted
to a GS-11 Community Health Program Specialist position effective
February 10, 2002. The agency stated that C1 is African-American and
that complainant failed to mention that a number of African-Americans
were promoted at Oceana.
After the agency conducted its investigation of complainant's claim, it
provided complainant with a copy of the report of investigation and notice
of right to request a hearing before an EEOC Administrative Judge (AJ)
or an immediate final decision by the agency. Complainant requested a
hearing before an EEOC AJ. During the hearing stage, both complainant and
the agency motioned for summary judgment and decisions in their favor.
Without a hearing, on July 18, 2006, the AJ issued a decision finding
discrimination. Specifically, the AJ stated that the agency failed to
articulate a legitimate, nondiscriminatory reason for its action. The AJ
noted inconsistencies, in the report of investigation, in the testimony of
S2 and S1. The AJ indicated that S2 professed to be a member of the Board
and having advocated complainant's promotion before the Board on December
17, 2003, but that record evidence indicated that S2 was "excused" from
Board participation on that day. Further, the AJ noted that S2 indicated
that he consulted with S1 regarding complainant's promotion and S1 stated
that the Oceana clinic did not have the money to offset complainant's
promotion, but that S1 testified that he was not informed of the reason
for the Board's denial of complainant's promotion. Accordingly, the AJ
ordered relief, including a retroactive promotion with all appropriate
step increases, back-pay and related benefits, posting of a Notice of
Discrimination at the Oceana facility, and a supplemental investigation
as to complainant's entitlement to compensatory damages and attorney's
fees and costs. In a decision dated September 13, 2006, the AJ issued
a decision as to relief in which she awarded complainant restoration
of 236 hours of leave, $4,621.20 in pecuniary damages, $20,000.00 in
non-pecuniary damages, and $7,738.47 in attorney's fees and costs.
On October 26, 2006, the agency issued its Final Order, stating that it
would not implement the AJ's decision, and filed the instant appeal.
CONTENTIONS ON APPEAL
The agency argued on appeal that complainant failed to establish a
prima facie case of discrimination. The agency contended that no one
in complainant's supervisory chain opposed her promotion and that it
was the Personnel Management Resources Board, a committee of about six
members who must reach a consensus on promotions for about 3,000 hospital
staff members, that determined that there was no money in complainant's
directorate to fund the promotion of complainant or other Nurse Educators.
The agency further asserted that there was no evidence that the Board
members were even aware of complainant's race or color.
The agency stated that the Board decided that complainant's higher level
duties could be performed by a Military Nurse instead of complainant,
and, on December 17, 2003, denied her promotion. In addition, the agency
stated that there are also Nurse Educators at other clinics in the agency
and all of them were Caucasian and similarly ranked as GS-9. Further,
the agency stated that there are no significant similarities between
the duties or position descriptions of the Community Health Program
Specialist and Nurse Educator. Also, the agency stated that the Board
approved two promotions for Nurse Specialist/Clinical Nurse positions
in July 2003, but that those positions were not accretion-of-duties
promotions, the environment was more technical, and the duties were
different. The agency stated that the AJ noted "other promotion actions"
at Oceana "in or about December 2003" but failed to indicate the varying
circumstances for those promotion actions.
In opposition to the agency's appeal, complainant requests that the
Commission affirm the AJ's finding of discrimination and order of relief.
Complainant stated that she helped create a Health Promotion Program
and changes to the program's size, structure and scope occurred over
time, such that the agency created new positions to support the program.
Complainant stated that the agency effected a change in job title from
Health Education Specialist to Community Health Program Specialist to
assist in recruiting employees. Complainant stated that she continued
to perform her duties and assisted higher-graded employees entering the
program with information on how to perform their job. Complainant stated
that it was evident that she was performing on the GS-10 or GS-11 for
a long time and she requested a rewrite of her position description as
early as 1998. She stated that her chain of command initiated action
to consider her position description for promotion on July 14, 2003.
Complainant stated that her position was rated as GS-9 in November 2003,
and that at least three counterparts, who are outside of her protected
race class and occupy the substantially similar position of Community
Health Specialist, were rated at GS-11.
Complainant stated that the agency acknowledged that she performed at the
GS-10 level but management failed to take the right corrective action.
Complainant noted that the Board, however, granted 13 promotions/upgrades
including three in her directorate. Complainant stated that, on May 20,
2004, the agency instructed complainant to stop performing the higher
graded duties. Complainant stated that she suffered emotional distress
due to the agency's action. Complainant asserted that no genuine issues
of material fact exist and that she established a prima facie case, but
the agency failed to establish a legitimate, nondiscriminatory reason
for its action. Complainant argued that she was able to establish an
inference of discrimination by showing that coworkers who are outside of
her protected classes were performing the same work for different pay.
She stated that her position description is inaccurate and that other
persons outside of her protected classes were promoted during the period
that she requested a promotion. Complainant also asserted that the number
of promotions due to accretion-of-duties for African-American decreased
after the establishment of the Board in January 2003. Complainant stated
that the Board was composed of all Caucasian members and that she was
treated less favorable than Caucasian coworkers. Complainant stated
that the agency did not present evidence to allow her an opportunity
to show that its articulated reason is pretextual. She stated that the
agency made a bald assertion that it did not promote her due to budget
constraints. Lastly, complainant stated that the agency did not show
that it planned to present additional witnesses that were not presented
during the complaint investigation.
In response to complainant's opposition, the agency stated that
the Board was unaware of complainant's race or prior EEO activity;
the Board was created in January 2000, which is prior to the date
that complainant stated, and promoted more African-Americans in the
period that complainant's promotion was considered than before that
time period; complainant's rewritten position description is in the
record and clearly different than those of whom she compares herself;
complainant misstates the facts regarding the statistics on promotions;
and complainant errs in suggesting that her performance of duties above
her grade level proves discrimination as mere unfairness is insufficient.
Finally, the agency stated that the facts in Davis v. Dep't of Veterans
Affairs, EEOC Appeal No. 01A01256 (March 5, 2003) as to relief awarded
by the AJ are different than the facts here.
ANALYSIS AND FINDINGS
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. 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. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). 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. Id.
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. Anderson 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.
Anderson 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 Corp. 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. The courts
have been clear that summary judgment is not to be used as a "trial
by affidavit." Redman v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975).
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without a hearing is not appropriate. The Commission has
noted that when a party submits an affidavit and credibility is at issue,
"there is a need for strident cross-examination and summary judgment on
such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request
No. 05940339 (February 24, 1995).
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). First, complainant must 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.
McDonnell Douglas at 802. Next, the agency must articulate a legitimate,
nondiscriminatory reason(s) for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
We note that the hearing process is intended to be an extension of the
investigative process, designed to ensure that the parties have "a fair
and reasonable opportunity to explain and supplement the record and,
in appropriate instances, to examine and cross-examine witnesses." See
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-1 (November 9, 1999); see also 29 C.F.R. � 1614.109(e).
After a careful review of the record, we find that the AJ erred when she
concluded that there was no genuine issue of material fact in this case
to be addressed at hearing. The AJ incorrectly found that the agency
failed to articulate a legitimate, nondiscriminatory reason for its
action and bypassed the complainant's burden to prove that the reason
the agency articulated was pretext for discrimination.
The record establishes that agency management witnesses, including S2
and the PC Specialist, articulated that the Board denied complainant's
promotion because of lack of funding in the Oceana budget to offset the
promotion. In finding that the agency did not articulate a legitimate
reason for the decision, the AJ appears to have made credibility
determinations without a hearing to discount that reason-in essence
finding the agency's proffered reasons for its actions to be a pretext
to mask discrimination. It is notable that the evidentiary burden
on complainant with regard to pretext is to "establish" and "prove,"
while the burden on the agency is to simply "articulate" a legitimate,
nondiscriminatory reason, which is what it did here.
Based on an independent review of the record, we find that material
facts are still in dispute and the credibility of witnesses is still
ripe for challenge. For example, S2 was the primary management witness
who proffered the Board's reason for denying the promotion-that the
budget could not support the promotion. The AJ noted inconsistencies
in the testimony of S2 during the fact-finding conference portion of
the agency's investigation. The AJ indicated that S2 professed to be a
member of the Board and having advocated complainant's promotion before
the Board on December 17, 2003, but an attendance roster in the record
evidence indicated that S2 was "excused" from Board participation on
that day. As both S2 and the PC Specialist have testified that he did in
fact attend the December 17, 2003 Board meeting-a clear issue of material
fact exists to be resolved at hearing. In addition, the AJ noted that S2
stated that he communicated with S1 regarding complainant's promotion in
advance of the Board meeting and S1 stated that the organization did not
have the money to "offset" complainant's promotion. The AJ perceived some
contradiction in this testimony in the statement offered by S1 that he was
not informed of the Board's reason for not promoting complainant after
its meeting. The AJ's rationale on this point is unclear, and whether
or not S2 gathered information about a budgetary offset to present to
the Board is another issue which needs to be resolved through a hearing.
Finally, the record evidence is unclear concerning what other people
received promotions during this timeframe, what organizations they
worked for, and whether or not they were in comparable positions to
the one complainant occupied. In summary, we find that a hearing is
necessary in this matter to determine whether complainant can prove that
the legitimate, nondiscriminatory reason articulated by the agency-budget
constraints-was a pretext for discrimination.
Based on the above, the Commission VACATES the agency's final action
and REMANDS the matter to the agency in accordance with this decision
and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's Charlotte,
North Carolina District Office the request for a hearing within fifteen
(15) calendar days of the date this decision becomes final. The agency
is directed to submit a copy of the complaint file to the EEOC Hearings
Unit within fifteen (15) calendar days of the date this decision becomes
final. The agency shall provide written notification to the Compliance
Officer at the address set forth below that the complaint file has been
transmitted to the Hearings Unit. Thereafter, the Administrative Judge
shall issue a decision on the complaint in accordance with 29 C.F.R. �
1614.109 and the agency shall issue a final action in accordance with
29 C.F.R. � 1614.110.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
June 25, 2007
__________________
Date
1 The Administrative Judge's decision in this matter found no
discrimination on the basis of reprisal. The agency adopted this finding,
and complainant has not contested it on appeal. Therefore, the reprisal
claim will not be further addressed in this decision.
2 The clinic where complainant worked was subcomponent of the Naval
Medical Center in Portsmouth, Virginia. The Position Management Review
Board was located in the Portsmouth hospital, and made all the promotion
decisions for the 3,000-person organization. The Board consists of five
to six voting members who must reach consensus on promotions.
3 The record indicates that an "offset" exists when funds already
budgeted for a vacant position that the organization does not need to
fill can be used to pay for a promotion.
4 Complainant was the only Nurse Educator at Oceana, but there was
testimony that there were other Nurse Educators at other branch clinics
in the organization.
5 We note that the attendance roster categorizes the participants'
status as "present," "excused," or "absent." However, both S2 and the
PC Specialist testified that he was at the meeting.
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0720070011
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0720070011