0120122340
10-26-2012
Theresa Joy, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Theresa Joy,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122340
Hearing No. 430-2011-00353X
Agency No. 2004-0637-2011100452
DECISION
Complainant timely filed an appeal from the Agency's April 6, 2012, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the Administrative Judge (AJ) properly issued a decision without a hearing on Complainant's claim that the Agency discriminated against her on the basis of age when it did not select her for the position of Medical Technologist, Microbiology, GS-11/12, and (2) whether the AJ properly found that Complainant had not proven that she had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Technologist, Microbiology, GS-9, at the Agency's Charles George VA Medical Center in Asheville, North Carolina. On January 13, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (50) when it did not select her for the position of Medical Technologist, Microbiology, GS-11/12.1
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. Complainant timely requested a hearing.
On February 10, 2012, the AJ issued a Notice of Intent to Issue Decision without a Hearing. The Agency filed a Response on February 23, 2012, and Complainant filed a Response on February 29, 2012. The AJ issued a decision without a hearing on March 20, 2012.
In her decision, the AJ concluded that a decision without a hearing was appropriate on all issues, as no material facts were in dispute. The AJ found the following facts: On August 25, 2010, the Agency announced a vacancy for a Medical Technologist, Microbiology, GS-11/12. The Chief of Pathology and Laboratory Medicine (SO) was the selecting official.
SO appointed an interview panel consisting of SO, the Chief Technologist/Laboratory Manager (P1), the Supervisory Technologist, Pathology and Laboratory Medicine (P2), and the Supervisory Medical Technologist, Chemistry (P3). The panelists interviewed three applicants and rated them according to their answers to nine performance-based questions. The selectee, a 39-year-old female, received the highest total score, 111.5. Complainant received a total score of 108.0, and a 56-year-old male (Applicant 3) received a total score of 93.0. The individual scores were as follows:
SO P1 P2 P3 Total Complainant 32.0 29.0 25.0 22.0 108.0 Selectee 30.0 25.5 31.0 25.0 111.5 Applicant 3 21.5 24.5 19.0 28.0 93.0
Noting that the evidence shows that SO chose the selectee because she received the highest total score from the panel, the AJ concluded that the Agency had articulated a legitimate, nondiscriminatory reason for its action. The AJ also concluded that Complainant had not shown the Agency's reason to be pretextual.
With respect to Complainant's argument that her supervisory experience at a private facility made her more qualified for the position than the selectee, the AJ noted that the panelists stated that they considered all three of the interviewed applicants to be qualified in terms of experience and therefore relied on the applicants' answers to the interview questions. The AJ found that Complainant failed to proffer any probative evidence that age-based animus motivated the decision to rely on the interview.
The AJ also found that Complainant's assertion that SO had a practice of hiring and promoting young women did not establish that the Agency's articulated reason was a pretext for age discrimination. The AJ noted that the evidence showed that SO had promoted and hired individuals older and younger than 40 and that SO gave Complainant a higher score than he gave the selectee.
Finally, with respect to Complainant's assertion that P2 pre-selected the selectee because P2 and the selectee had a very close, "mother-daughter" kind of relationship, the AJ found that Complainant failed to produce evidence that the selection was based on age discrimination. Citing Kay v. Department of the Army, EEOC Appeal No. 01A04243 (January 20, 2001), and Monsanto v. Department of Defense, EEOC Appeal No. 01A40495 (February 5, 2004), the AJ noted that cronyism, absent evidence of discriminatory animus, did not violate anti-discrimination statutes.
Viewing the facts in the light most favorable to Complainant, the AJ concluded that the Agency did not discriminate against Complainant when it did not select her for the position at issue. 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. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her representative, argues that the AJ should not have relied on the interview scores because a panelist who wanted to pre-select a candidate could have adjusted scores to reach a predetermined outcome. Complainant also argues that she should have been afforded a hearing to determine whether the asserted pre-selection was based on friendship or age discrimination. In addition, Complainant asserts that the AJ erroneously refused to consider the differences between Complainant's and the selectee's supervisory experience. Complainant names seven employees who, according to Complainant, are younger employees hired by SO.
In response, the Agency argues that Complainant has not provided evidence to support her claim of age discrimination and that the AJ properly issued a decision without a hearing in favor of the Agency.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both an AJ's decision to issue a decision without a hearing and the decision itself will be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Decision without a Hearing
We must first 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. 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); Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (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 administrative judge 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) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In the instant case, we find that the AJ's decision to issue a decision without a hearing was appropriate. The record has been adequately developed, Complainant received the AJ's Notice of Intent to Issue Decision without a Hearing, and she responded to the Notice. There were no genuine issues of material fact in dispute. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ properly issued a decision without a hearing.
Non-selection for the Position of Medical Technologist, Microbiology, GS-11/12
A claim of a disparate treatment such as this generally is examined under the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. 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). Complainant can do this by showing that the proffered explanations are unworthy of credence. Burdine, 450 U.S. at 256.
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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-15 (1983); Hernandez v. Dep't of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
After a review of the record, we find that the Agency articulated a legitimate, nondiscriminatory reason for its action and that Complainant failed to establish that the articulated reason was pretextual. The evidence establishes that the Agency chose the selectee because she received the highest total score from the interview panel. Complainant has not shown that this reason is unworthy of credence or that age bias motivated the Agency.
Complainant's assertion that the selectee had a close relationship with P2 and was pre-selected for the position does not establish that the Agency discriminated against Complainant on the basis of age. Complainant has produced no evidence that the alleged pre-selection was motivated by discriminatory animus and, in the absence of such evidence, she has failed to demonstrate a genuine issue of material fact. Further, although Complainant asserts that her supervisory experience made her more qualified for the position than the selectee, she has not shown that her qualifications were plainly superior to those of the selectee. Finally, Complainant's assertion that SO previously selected younger employees for positions does not compel a finding of discrimination or create a genuine issue of material fact. As the AJ noted, the record establishes that SO has selected older as well as younger employees for positions. Moreover, SO gave Complainant the highest interview score. To the extent that Complainant is asserting that SO harbored an age-based bias against her, that claim is belied by the interview score.
Complainant has not shown that the Agency's articulated reason for not selecting her for the Medical Technologist position was a pretext for age discrimination. We therefore find that the AJ properly determined that Complainant had not established her claim of age discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order, which implemented the AJ's finding of 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 (Nov. 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
October 26, 2012
Date
1 Complainant also alleged that the Agency discriminated against her on the bases of age and reprisal with respect to her performance appraisal and on the basis of reprisal when it denied her request for leave under the Family and Medical Leave Act. By letter dated March 2, 2011, the Agency dismissed those claims pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Complainant has not appealed the dismissal of those claims.
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0120122340
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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