01A05394
04-27-2001
Robert Davis, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Robert Davis v. Department of Veterans Affairs
01A05394
April 27, 2001
.
Robert Davis,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05394
Agency No. 992756
Hearing No. 130-A0-8092-X
DECISION
Robert Davis (complainant) timely initiated an appeal from the agency's
final order concerning his equal employment opportunity (EEO) complaint of
unlawful 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 appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he
was discriminated against on the basis of race (Black) when he was hired
as a Respiratory Therapist at a lower wage than a similarly-situated
White individual.
BACKGROUND
The record reveals that complainant, a Certified Respiratory Therapy
Technician at the agency's Tuskegee, Alabama Medical Center, filed a
formal EEO complaint with the agency on May 14, 1999, alleging that the
agency had discriminated against him as referenced above. When the
investigation was not completed with 180 days, complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination. The AJ noted
that the case was appropriate for summary judgment because there were no
genuine issues of material fact. The AJ concluded that complainant failed
to establish a prima facie case of race discrimination because he failed
to establish that he was similarly situated to the White individual he
named as a comparator. Specifically, the AJ found that because the White
comparator (WR) had 8 more years of experience as a Respiratory Therapist
than complainant, the two were not similarly situated. The AJ went
on to hold that the agency's reliance on this difference in experience
also satisfied its burden of articulating a legitimate non-discriminatory
reason for its action. The AJ found that complainant failed to establish
that this explanation was a pretext for race discrimination. The agency's
final order implemented the AJ's decision.
On appeal, complainant contends for the first time that the agency
credited WR with more years of experience than she had, noting that she
was certified in 1992 but credited with 11 years of experience. He also
argues that the requirement that Respiratory Therapists be certified
is new and that certification is not required by the military, where he
received much of his experience. Complainant also raises questions about
the truthfulness of testimony provided by one of the agency officials.
ANALYSIS AND FINDINGS
The 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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition. The
Commission will apply a de novo standard of review when it reviews
an AJ's decision to issue a decision without a hearing pursuant to 29
C.F.R. � 1614.109(g). See EEO- MD-110, at 9-16.
After a careful review of the record, the Commission finds that AJ
properly determined that this case involves no genuine issues of material
fact. The AJ's decision properly summarized the relevant facts and,
for the most part, referenced the appropriate regulations, policies,
and laws. Contrary to the AJ's finding, we find that complainant
established a prima facie case of race discrimination, in that he named
an individual outside his protected class who is paid a higher wage
for performing the same job as he performs. However, the AJ correctly
found that the agency articulated a legitimate non-discriminatory
reason for this disparity. Specifically, the record established that
WR had significantly more experience than complainant, having received
certification as a Respiratory Therapist in March 1992, as compared to
complainant's December 1998 certification. The record also establishes
that WR was hired from outside the agency and that those who hired
her were given permission to offer her a special salary rate to match
her existing salary due to the difficulties the agency was having in
attracting Respiratory Therapists. Complainant was hired from inside
the agency and did not qualify for the special salary rate.
Although complainant contends that the number of years one has been
certified as a Respiratory Therapist is not an accurate measure of
experience, he does not dispute that WR has been certified longer.
Moreover, even assuming complainant has experience equivalent to WR,
he failed to raise any argument in response to the agency's claim that
because WR was hired from outside the agency at a time when the agency was
having trouble attracting Respiratory Therapists, the hiring officials
were given special permission to match her existing salary. Instead
of disputing this assertion, complainant merely noted that he is not
satisfied with it. Accordingly, after a careful review of the record, we
find that the AJ correctly determined that this case involves no genuine
issue of material fact. We therefore AFFIRM the agency's final order.
We note that the �counts of libel� that complainant attempted to add
to his complaint were properly determined by the AJ to be outside the
jurisdiction of this Commission in that they do not involve claims of
discriminatory treatment. Similarly, the AJ acted within his authority
when he refused complainant's request to amend the complaint to include a
retaliation claim. In a February 10, 2000 letter to the AJ, complainant
alleged that in June 1999, he was subjected to retaliation when he
did not receive an award that others received. Administrative Judges
have discretion to allow complainants to amend complaints to include
issues that are like or related to those raised in a pending complaint.
See 29 C.F.R. � 1614.106(d); EEO-MD-110, at 5-9. In the case at hand,
the AJ acted within his discretion when he decided not to allow the
amendment. However, the AJ failed to remand the claim for processing
and we therefore hereby REMAND the retaliation claim to the agency for
counseling in accordance with the ORDER below.
Finally, we note that the AJ failed to address complainant's allegations
concerning the improper processing of his complaint. Complainant
noted that the agency failed to complete its investigation within
180 days and failed to �check into� his complaint. We remind the AJ
and the agency that such claims must be addressed. See EEO-MD-110,
at 5-25. Complainant is correct that the agency failed to complete the
investigation within the required 180 days. The record reveals, however,
that after complainant requested a hearing, a supplemental investigation
was completed and forwarded to the AJ. After a careful review of the
record, we find no evidence that the processing problems mentioned by
complainant affected the outcome of his complaint.
ORDER
The agency is ORDERED to refer the remanded retaliation claim for EEO
counseling within thirty (30) calendar days of the date this decision
becomes final in accordance with 29 C.F.R. � 1614.105.
A copy of the agency's referral letter and EEO counseling report must
be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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 order 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
April 27, 2001
Date