0120130756
03-02-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130756
Hearing No. 530-2011-00308X
Agency No. 2004-0517-2010104815
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 31, 2012 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Physician's Assistant (PA) at the Agency's Beckley Veterans Affairs Medical Center (VAMC) in Beckley, West Virginia.
On October 19, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him in reprisal for prior EEO activity when:
on August 25, 2010, he learned that a Physician's Assistant Professional Standards Board (Board) was held in Durham, North Carolina, rather than Beckley, West Virginia, and the Board awarded him only a 1-step increase effective September 21, 2009.
On November 29, 2010, the Agency issued a final decision dismissing the instant formal complaint for failure to state a claim. On appeal, the Commission reversed the Agency's dismissal and remanded the matter to the Agency for further processing. Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120111318 (May 19, 2011).
On remand, the Agency conducted an investigation of the complaint. During the investigation, Complainant alleged that management conspired to circumvent established guidelines when considering his request for a Special Advancement Achievement (SAA) award. Complainant alleged that his SAA award was determined by the Board in Durham, rather than in Beckley. Complainant asserted that the Beckley Board had an established protocol that SAA awards would be 3 or 4 steps awards. Complainant stated that the Director of the Beckley VAMC was aware that the Beckley Board had given a 4-step award to a female PA. Complainant alleged that the Beckley Director intentionally ensured he would not receive a 4-step increase by failing to appoint a sufficient number of GS-13s to the Beckley Board so that Complainant's request for an SAA award would have to be considered by the Durham Board. Complainant stated that written Agency policy required the Director to ensure Beckley had an effective Board which was capable of determining his SAA so that it did not have to be sent to the Durham Board. The Durham Board granted Complainant a 1-step SAA award.
After an investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On September 20, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record established the following undisputed facts. Complainant was a GS-13, Step 7, PA working at the Beckley VAMC. The Durham Board provided Complainant with the minimum SAA award, a 1-step increase. Shortly before this period, the Beckley Board had approved a 4-step SAA award to the female PA with the Director's approval. Complainant was the chairman of the Beckley PSB at the time the female PA received the 4-step SAA.
After Complainant was awarded the 1-step SAA, he requested a review by another Board, including the Beckley Board, which became functional after his SAA was issued. Complainant's appeal of the award was denied.
In September 2009, the Beckley VAMC did not have a fully functioning Board for GS-13 Physician Assistants. The AJ found that it was undisputed that the Director was unhappy with the Beckley Board's recommendation of a maximum award to a female PA, the comparator cited by Complainant. Although the Director ended up approving the award, she talked to Complainant, as Chairperson of the Board, about her displeasure with the Board's failure to properly justify its recommendations. As a result of her concerns, the Director asked the Human Resources Chief to request that the Durham Board complete all Beckley actions involving GS-13 Physician Assistants until the Beckley Board members had appropriate training and the functional statements for the Physician Assistants accurately reflected GS-13 standards. The Director also asked Complainant, as Chairman of the Beckley Board, to have the Board draft a set of criteria and guidelines to help the Board explain differences in their recommendations.
While the Beckley Board was in training and the revisions were being made to the functional statements, the Durham Board conducted actions on the Beckley Physician Assistants. In June 2009, the Durham Board awarded Complainant a SAA based on his selection to a national taskforce and his involvement with the VISN pain program. At that time, the Durham Board recommended a 2-step increase, which the Director approved on June 11, 2009.
Less than three months later, on August 31, 2009, the Durham Board recommended that Complainant receive another 1-step increase based on his adjunct faculty position. The Board indicated in its package for this action that, "[g]reater than one step is unprecedented for this Board for an adjunct faculty position." The Director approved the 1-step advancement for Complainant based on the Durham Board's recommendation. The Director had no contact with the Durham Board concerning its consideration of Complainant's August 2009 application for a SAA. The AJ noted that during the relevant period, the boarding actions of other Beckley Physician Assistants who did not have prior protected activity were also sent to the Durham Board for action.
Based on these facts, the AJ found no discrimination. The AJ concluded that even if Complainant established a prima facie case of reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to prove were a pretext for discrimination.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
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. 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, summary judgment is not appropriate. 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.
On appeal, complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The evidence of record amply supports the AJ's determination that the Agency articulated legitimate, non-discriminatory reasons for its actions. As discussed more fully above, the Director was concerned with what she perceived as an inability on the part of the Beckley Board to justify its award recommendations. So she suspended the work of the Board and had all award actions determined by the Durham Board until the Beckley Board members could receive training, proper functional statements could be developed for GS-13 PAs, and the Board drafted appropriate criteria and guidelines for its recommendations. Complainant's request, as well as boarding actions for other GS-13s, was sent to Durham during this period. During a less than three-month period, the Durham Board recommended, and the Director approved, two awards for Complainant - one 2-step award and a later 1-step award. The female comparator cited by Complainant received her 4-step award from the Beckley Board before it was suspended.
Since the Agency provided legitimate reasons for its actions, the burden shifted to Complainant to prove, by a preponderance of the evidence, that the proffered reasons were pretext designed to mask that fact that the actions were actually motivated by retaliatory animus. The AJ determined, and we concur, that Complainant failed to meet this burden.
The Agency's final order implementing the AJ's decision by summary judgment, finding no discrimination, is AFFIRMED.
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
March 2, 2015
__________________
Date
2
0120130756
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130756