Complainantv.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 17, 2014
0120130042 (E.E.O.C. Jul. 17, 2014)

0120130042

07-17-2014

Complainant v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Complainant

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120130042

Hearing No. 530-2011-00281X

Agency No. 200H-0642-2010104562

DECISION

On October 2, 2012, Complainant filed an appeal from the Agency's August 30, 2012, final order concerning her equal employment opportunity (EEO) complaint alleging 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. 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 whether the Administrative Judge properly issued a decision without a hearing, and whether she properly found that Complainant had not established that the Agency discriminated against her as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse/Quality Management Specialist in Clinical Support Services at the Agency's VA Medical Center in Philadelphia, Pennsylvania. Complainant has been employed at the Agency since 1978, and had previously held the position of Infection Control Nurse from 1981 through 1993, when she was transferred to a different position. Complainant has filed a number of previous EEO complaints and appeals regarding her transfer out of the Infection Control Nurse position and her unsuccessful attempts to obtain that position again. See EEOC Appeal No. 01973596 (June 22, 2000), req. to recon. denied, EEOC Request No. 05A01039 (Jan. 25, 2001) (Complainant was not discriminated against when she was issued a reprimand and was permanently reassigned from her position as Infection Control Nurse to Nurse in the Quality Management Section); EEOC Appeal No. 01961482 (Feb. 5, 1998), req. to recon. denied, EEOC Request No. 05980465 (Mar. 24, 2000) (Complainant was not discriminated against on the bases of race, color, age and reprisal when her temporary reassignment out of the Infection Control Nurse position was made permanent); EEOC Appeal No. 01A45596 (April 26, 2006), req. to recon. denied, EEOC Request No. 05A60781 (July 13, 2006) (Complainant was not discriminated against on the basis of reprisal when she was not selected for the Infectious Disease Control Nurse position).

On September 27, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when, by letter dated August 4, 2010, she was notified that Vacancy Announcement 95-2010 for the position of Registered Nurse Infection Control had been cancelled. The Agency dismissed the complaint for failure to state a claim, but on appeal to the Commission, the dismissal was reversed and the complaint remanded to the Agency for an investigation. EEOC Appeal No. 0120110776 (April 28, 2011).

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 (AJ). Complainant timely requested a hearing.

On March 5, 2012, the Agency filed a Motion for a Decision without a Hearing. Complainant filed a response in opposition to the Agency's Motion on March 20, 2012. The AJ issued a decision without a hearing on August 13, 2012.

In her decision, the AJ found that the record was sufficiently developed such that a decision could be made. The AJ found the following facts: Complainant applied for the vacancy on February 23, 2010. Complainant met the basic and preferred qualifications for the position and was referred for an interview. She was interviewed in a panel session on March 17, 2010. A second round of interviews was conducted but Complainant did not score highly enough in her first interview to be interviewed a second time. By letter dated August 4, 2010, she was informed that the position vacancy had been cancelled. The AJ noted that Complainant had included a statement regarding her prior EEO activity in the cover letter to her application.

The AJ found that the incumbent to the advertised position had been on extended leave and was thought to be planning to retire in the near future. The Agency at this time was preparing for an Office of Inspector General visit in September 2010, and the incumbent had been working on preparing for the assessments. After the interviews for the vacancy announcement occurred, the incumbent returned to duty. The Nurse Executive testified that the vacancy announcement was cancelled because she thought that the incumbent was planning on remaining in her position as opposed to retiring. She also testified that she had concerns regarding the facility's budget, and did not want to commit to an additional staff member should the incumbent stay on. When the incumbent did decide to retire, not long after the vacancy announcement was canceled, the applicants for the position were invited to reapply under the new vacancy announcement number.1

The AJ concluded that Complainant had failed to establish a prima facie case of reprisal discrimination as she had not shown a nexus between her prior EEO activity and the cancellation of the vacancy announcement. She found that the Agency articulated unrebutted, legitimate, nondiscriminatory reasons for the vacancy announcement cancellation in that the Nurse Executive testified that she believed that the incumbent had decided not to retire and would be staying in the position. She also testified that following the first round of interviews, Complainant had not scored highly enough to be interviewed in the second round of interviews. The AJ found that Complainant had not shown these reasons to be pretext for discrimination as she had not shown that she was the best qualified candidate for the position.

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.

CONTENTIONS ON APPEAL

In her statement in support of her appeal, Complainant argued that the vacancy announcement had stated that it was to be "opened until filled" and that the cancellation was in direct contradiction to that language. She argued that a decision should not have been issued without a hearing and that she was the best-qualified candidate for the position.

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 an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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 the 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. There were no material facts in dispute such that the AJ would have needed a hearing in order to make credibility findings.

Disparate treatment

To prevail in a disparate treatment claim, complainant must satisfy 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 or she 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 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community 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 establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp., supra). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

In this case, we find that Complainant has not shown that she was discriminated against as alleged. Complainant established a prima facie case of reprisal discrimination. Complainant had engaged in EEO activity, the Agency managers involved in the selection process were aware of that activity through Complainant's inclusion of such information in her cover memorandum to her application, and the vacancy announcement for the Infection Control Nurse position was cancelled. The statements in her application about her prior EEO activity and the cancellation of the vacancy announcement occurred close enough in time to infer a connection.

We find however, that the Agency articulated legitimate, nondiscriminatory reasons for the cancellation which Complainant has failed to show were pretext for discrimination. The Nurse Executive believed that the incumbent to the position was about to retire, so she advertised the vacancy, but when the incumbent decided not to retire, the announcement was cancelled due to concerns about overextending the budget at the close of the fiscal year. Complainant has not shown these reasons to be unworthy of belief.

CONCLUSION

Based on a thorough review of the record and the contentions from Complainant on appeal, we AFFIRM the Agency's final order, which implemented the AJ's finding that Complainant did not establish that she was discriminated against as alleged.

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 (November 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

July 17, 2014

Date

1 The EEO complaint concerning Complainant's non-selection for the re-announced position is the subject of EEOC Appeal No. 0120123321.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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