01996891
02-14-2002
Augusta Williams, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Augusta Williams v. Department of Veterans Affairs
01996891
February 14, 2002
.
Augusta Williams,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996891
Agency No. 98-0970
Hearing No. 330-98-8218X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD), concerning his 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. Complainant alleges he was discriminated
against on the bases of race (Black), national origin (black), sex
(male), and age (over 40), when he was not selected for the position
of Patient Representative, GS-05/07/09 in the Office of the Director,
Office of Customer and Community Relations, under Merit Promotion Vacancy
Announcement No. VN #17(97). For the following reasons, the Commission
reverses the agency's FAD.
BACKGROUND
The record reveals that complainant, a Patient Services Assistant, GS-06,
in the Admissions Unit, Ambulatory Care and Processing Section, Medical
Administration Service, at the agency's VA Medical Center, Houston,
Texas, filed a formal EEO complaint with the agency on February 6, 1998,
alleging that the agency had discriminated against him as referenced
above. At the conclusion of the investigation, complainant was provided
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding discrimination.
Complainant had worked for the agency since 1981 in a variety of
positions. From 1981 to 1988, he worked primarily as a File Clerk and
File Supervisor. In October 1988, he accepted a voluntary downgrade to
become a Patient Services Assistant, GS-06. He was temporarily promoted
to Program Assistant, GS-07, for one month during 1991. At the time of
his application, he had been a Patient Services Assistant for 8 and �
years (rounded to nine years).
The Selectee (female, Hispanic, under 40) was a Claims Clerk, GS-05, also
in the Admissions Unit, Ambulatory Care and Processing Section, Medical
Administration Service, and had served in that position since 1995.
The Selectee and complainant had the same supervisor. As a result of
being selected, the Selectee was promoted to Patient Representative,
GS-07, effective June 22, 1997.
The AJ found that complainant established a prima facie case of
discrimination on the bases of race, sex, national origin, and age.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ found
that the Selecting Official (SO)(Caucasian, female), Community Relations
Officer, testified that the reason she did not select complainant was
because he did not have �the ability to not necessarily emotionally
engage with every conflict that arises in the job situation.� The SO
was concerned about stress on complainant, and she believed he did not
have enough outlets to relieve his stress and anger. On the other hand,
the SO indicated that she selected the Selectee because, in her view,
she felt the Selectee could provide a non-threatening environment for
the veteran, as well as, work in a team manner with the other employees
in the hospital; that the Selectee was very open to learning new skills
and strengthen her own capabilities; that the Selectee had the strongest
strengths in terms of dealing with the stressful work environment; and
that the Selectee had a good knowledge base of medical terminology which
was important to the position.
Nevertheless, the AJ concluded that complainant established that
more likely than not, the reasons provided by the agency were a
pretext for discrimination against complainant based on race and/or
national origin. The AJ found that complainant established that he was
a victim of racial stereotyping. The AJ additionally found that the
SO's reasons were conclusory and without foundation. The AJ further
concluded that because of complainant's race and/or national origin,
the SO ignored the complainant's qualifications such as complainant's
nine years of experience as a Patient Services Assistant, which the
AJ concluded was a similar position to the Patient Representative
position, the recommendation of complainant's supervisor, complainant's
supervisory experience, and complainant's nine years of experience with
problem-solving. However, the AJ found no discrimination based on sex
or age.
The agency's FAD rejected the AJ's decision. The FAD conceded that
complainant established a prima facie case on the alleged bases.
The FAD further found that the agency articulated a legitimate,
nondiscriminatory reason for the selection decision at issue, i.e.,
that the Selectee's interview responses showed superior ability in the
areas of conciliation, liaison, non-threatening communication, and stress
management; but that complainant's demeanor and answers indicated that
he was angry and troubled by stress, whereas the Selectee's demeanor and
answers indicated a superior ability to handle stress. With respect to
the AJ's finding of pretext, the FAD concluded that the AJ's conclusions
were not credibility findings based on demeanor and thus were not entitled
to deference. In addition, the FAD indicated that the AJ did not explain
why he recommended a finding of race and national origin discrimination,
but not age or sex discrimination, and that there was no indication that
the SO harbored any discriminatory animus towards blacks. Finally,
the FAD emphasized that it is not the function of the EEO process to
restrain management's employment decisions or to substitute another
judgment for that of the deciding official.
On appeal, complainant essentially argues that the AJ's decision was
correct in all material respects, and that the AJ correctly found
discrimination. Complainant urges the Commission to let the AJ's
decision stand.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). The Commission finds that substantial evidence
supports the AJ's finding of discrimination based on race and/or national
origin.<1>
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); Prewitt v. USPS, 662 F.2d 292 (5th
Cir. 1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)(requiring
a showing that age was a determinative factor, in the sense that �but
for� age, complainant would not have been subject to the adverse action
at issue). A complainant 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 reason
was a factor in the adverse employment action. McDonnell Douglas, 411
U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). After the agency has offered the reason for its
action, the burden returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant may establish a prima facie case of discrimination in the
nonselection context by showing that: (1) he is a member of a protected
class; (2) he was qualified for the position; (3) he was not selected for
the position; and (4) he was accorded treatment different from that given
to persons otherwise similarly situated who are members of his protected
group. Williams v. Department of Education, EEOC Request No. 05970561
(August 6, 1998). Complainant may also set forth evidence of acts from
which, if otherwise unexplained, an inference of discrimination can be
drawn. Furnco, 438 U.S. at 576. As previously indicated, the agency,
in its FAD, concluded that complainant established a prima facie case
of race and national origin discrimination.
The agency articulated legitimate, nondiscriminatory reasons for
its action. The SO stated that the Selectee was selected because
she felt that the Selectee was stronger in working with patients and
other employees, as well as in terms of dealing with the stressful work
environment. The SO was also concerned about complainant's ability to
handle the stressful work environment.
The Commission must now consider whether complainant has demonstrated,
by a preponderance of the evidence, that the agency's reasons were
pretextual, that is, the reasons were not the true reasons or the action
was influenced by legally impermissible criteria. The Commission
notes that in nonselection cases, pretext may be found where the
complainant's qualifications are demonstrably superior to the selectee's.
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). An employer has
the discretion to choose among equally qualified candidates. Canham
v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). On review of
the record, the Commission finds that complainant's qualifications were
demonstrably superior to the selectee's. Our analysis follows.
Complainant was found to be one of the best qualified candidates for
the position at the GS-05, GS-07, and GS-09 levels. The rating panel
referred candidates who qualified for the position at multiple levels at
the highest qualified grade. Therefore, the complainant was referred
for an interview as best qualified at the GS-9 level. FAD at 3.
The Selectee was promoted to GS-07. There is no indication that she
was even qualified for the position of GS-09. While management has
discretion to consider grade level in selection matters, the agency
did not indicate that it preferred an individual at the GS-07 level.
From the evidence of record, management took the position that the
Selectee was the best qualified candidate.
It is undisputed that complainant's position as a Patient Services
Assistant parallels in many respects the position of Patient
Representative. Complainant, in his job as Patient Services Assistant,
resolved complaints between the patients, the veterans, and the
professional staff. Complainant dealt with problem-solving in the
form of the veteran's medical treatment, veteran's ability to get care,
veteran's eligibility, and communication problems between the veterans
or their family and the professional staff.<2>
Complainant's supervisor gave a number 5 rating in the following
areas: knowledge of Federal laws; knowledge and skill in discussing and
negotiating with individuals to help determine solutions to problems;<3>
knowledge of medical terminology; and knowledge of various Public Laws.
Supervisory Appraisal of Employee for Promotion�Specialized Category
Appraisal with Narrative dated February 25, 1997, by his supervisor
and March 1, 1997 by the Reviewer. The 5 rating means that �Employee's
performance exceeds expectations to such an extent that it warrants
special attention for placement consideration.� Id. Complainant received
a 4 rating in
the following areas: skill in oral and written communication;<4> and
knowledge of current requirements of JCAHO, which relates to patients
rights and medical ethics. Id. The 4 rating means that �Employee has
demonstrated the Rating Factor or Job Element to a degree that is clearly
above the expected of a fully competent employee and you would expect the
employee to display the same degree of ability in the position applied
for.� Id.
At the time of complainant's application, his latest performance
appraisal, Patient Services Assistant, GS-06 (for the period 4/1/95
to 3/31/96) indicated an Outstanding Rating. One of the elements of
the rating was �Public Relations.� Complainant was rated Exceptional
in this element. The written commentary states that complainant
�always conducts himself very appropriately and professionally.
He has the ability of being able to resolve bad control, eligibility
and transfer issues. [Complainant] is always proven to be available,
positive, helpful and knowledgeable in his personal and telephonic
interactions with the medical center personnel as well as staff at
other facilities. [Complainant] always puts the care of the veteran
first.� Complainant was rated as Exceptional in all other elements of
his performance appraisal, including Application Processing/Benefits
Determination, Program Management, Orientation/ Safety.
For purposes of the position in question, at the time of the Selectee's
application, Selectee's last performance appraisal (for the period
9/17/95 to 3/31/96), Claims Clerk, GS-05, was Fully Successful.<5>
The Selectee was rated Exceptional for the Meeting and Dealing with the
Public element. She was rated Fully Successful in all other elements
of her performance appraisal, including Administrative Processing/MCCR,
Record Management/Appointment Management, and Orientation/Safety/ADP.
While the rating officials were different, the approval official was
the same for complainant and the Selectee. But see FAD at 2 where it
finds that the complainant's and Selectee's supervisor were the same.
While the FAD concluded that the AJ's conclusions were not credibility
findings based on demeanor, but rather that the AJ's conclusions were
based on plausibility, the FAD's conclusion and rationale cannot be
so neatly bifurcated. Plausibility can be a very relevant factor
to credibility. Indeed, if the fact finder finds testimony to be
implausible, the fact finder can and probably would find the testimony
not to be credible. Nevertheless, the agency has failed to establish
that any of the AJ's factual findings, involving credibility, were not
supported by substantial evidence.
The AJ found that the SO, for example, never came up with any reasons why
complainant could not deal with stress or why complainant did not have
enough outlets for his personal stress. Although the agency, in the FAD,
argues that the SO's assessment of complainant was based on her interview
of complainant, the SO was not sufficiently specific in giving the basis
for her assessment. Indeed, the FAD states that the SO �admittedly
recalled her observations with very limited elaboration.� FAD at 9.
The AJ essentially made a credibility determination in declining to
credit the SO's testimony. Accordingly, the Commission notes that the
credibility determinations of the AJ are entitled to deference due to the
AJ's first-hand knowledge, through personal observations, of the demeanor
and conduct of the witnesses at the hearing. Esquer v. United States
Postal Service, EEOC Request No. 05960096 (September 6, 1996); Willis
v. Department of the Treasury, EEOC Request No. 05900589 (July 26, 1990).
In view of the above, the Commission concludes that substantial
evidence supports the AJ's finding that complainant demonstrated, by a
preponderance of the evidence, that the agency's reasons for selecting
the Selectee were pretext for discrimination. Especially in view of
complainant's latest applicable performance appraisal and Supervisory
Appraisal of Employee for Promotion, the SO's concerns about complainant
appear to be unreasonable.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's arguments on appeal and the agency's response,
the Commission REVERSES the agency's final agency decision and REMANDS
the matter to the agency to take remedial actions in accordance with
this decision and the ORDER below.
ORDER (D0900)
The agency is ordered to take the following remedial action:<6>
Within thirty (30) days from the date this decision becomes final,
the agency shall retroactively promote complainant to the Patient
Representative, GS-09, position, or a substantially equivalent
position.<7> Complainant shall also be awarded back pay, seniority and
other benefits from the effective date of the promotion. Complainant
shall be given a minimum of fifteen (15) days from receipt of the offer of
promotion within which to accept or decline the offer. Failure to accept
the offer within the time period set by the agency will be considered a
rejection of the offer, unless complainant can show that circumstances
beyond his control prevented a response within the time limit.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. The complainant shall cooperate
in the agency's efforts to compute the amount of back pay and benefits
due, and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
The agency is directed to conduct training for the Customer and
Community Relations Officer, the Selecting Official, who was found to
have discriminated against complainant, when she did not select him.
The agency shall address this employee's responsibility with respect to
eliminating the discrimination in the workplace and all other supervisory
and managerial responsibilities under equal employment opportunity law.
The agency shall post a notice in accordance with the paragraph entitled
�Posting Order� below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Houston, Texas, facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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
February 14, 2002
Date
1 Since complainant on appeal does not dispute the AJ's finding that
complainant was not discriminated on the bases of sex or age, that issue
is not before the Commission on appeal.
2 The duties of the Patient Representative position were described
as follows:
Incumbent provides technical and administrative support of the Consumer
Affairs Specialist. Assists in serving as the liaison between the medical
center, patients, and staff, and the community regarding patients'
rights and advocacy. Provides a channel through which patients
can seek solutions to problems, concerns and needs. Receives and
listens to complaints and concerns from patients or from individuals on
behalf of patients. Explains the medical center's mission, policies,
procedures and available services to patients or their representatives.
Assists patients in problem areas, suggest solutions or alternatives.
Participates in maintaining an effective guest relations program. Assists
in facilitating medical emergency treatment and composes reports of
contact describing interactions with patients and their representatives,
and resulting actions. Maintains records of all patient inquiries.
Maintain[s] a diplomatic, caring and non-defensive approach in the face
of frequent encounters with hostile, angry, and accusatory clients,
staff and occasionally, the media. Serves on various committees.
3 In the narrative for this job element it is stated that �[w]hen
problems arise between other facilities or with the professional
concerning elements of patient transfer procedures, [complainant]
has shown a great deal of expertise in resolving any conflicts or
misunderstandings, always with the best interest of the veterans
(patients) in mind.�
4 In the narrative for this job element it is stated that
�[c]omplainant's position requires him to work with patients, family
member[s], professional staff all from a very wide spectrum of backgrounds
which he does very effectively. This is usually done in person or via
the telephone.�
5 In 1995, Selectee was promoted to Claims Clerk, GS-05. The Selectee's
duties, as a Claims Clerk, included interviewing patients and patient
representatives to assist them in completing applications for medical
benefits, processing physician orders, and resolving patient problems
with eligibility, travel, policies and procedures. The Selectee had
worked for the agency since 1992, beginning as a Clerk-Typist and Office
Automation Clerk. In 1997, after applying for the Patient Representative
position, she was reassigned to a Secretary (Office Automation) position.
6 Complainant did not request compensatory damages. Accordingly, the
Commission does not order a supplemental investigation for compensatory
damages.
7 The SO stated that it was her understanding that she could choose
a person from either of the three grade levels, i.e., GS-05/07/09.
While the Selectee was selected for a GS-07 position, and complainant
indicated that he was applying for a GS-05/07/09 position, the agency
did not indicate in any manner that these circumstances influenced
its selection. For example, the agency did not suggest that economic
considerations forced it to only select at the GS-07 or lower level.
The agency's June 19, 1997, letter informing complainant of his
non-selection indicated that complainant was qualified and referred at
the GS-05, GS-07, and GS-09 levels. Accordingly, the Commission has
concluded that complainant is entitled to a promotion to the GS-09 level.