0120073288-r
02-12-2009
Hannah C. Gatling, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Hannah C. Gatling,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073288
Hearing No. 490-2006-00191X
Agency No. 200L-0350-2006100823
DECISION
On July 17, 2007, complainant filed an appeal from the agency's June
26, 2007 final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
The record reflects that in November 2005, the agency posted two vacancy
announcements for a Veterans Service Representative, GS-0996-07,
in Little Rock, Arkansas. The agency posted the first, Vacancy
Announcement No. MPA-394-06-350-03-25-USAJ, on the USA Jobs website.
This vacancy announcement indicated that the area of consideration
for the position was limited to Status Candidates (reinstatement and
transfer); those qualified under the Veterans Reemployment Act (VRA);
veterans eligible under VEOA; 30% or more disabled veterans; veterans
eligible under Chapter 31; and those who were "VA CTAP or Interagency CTAP
eligible (within the commuting area)." The second, Vacancy Announcement
No. VB101624, was posted through the Delegated Examining Unit (DEU).
This vacancy announcement involved a competitive hiring process that
was open to the public. Complainant submitted applications, including
documentation regarding her disability, for the position under both
vacancy announcements. In December 2005, complainant learned that she
was not placed on either of the candidate referral lists.
On February 6, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of disability (brain injury,
fibromayalgia, dystonia) when, on December 21, 2005, complainant was
made aware that her name was not on the certificate of referral for
two vacancy announcements, Veterans Service Representative Vacancy
Announcement Nos. MPA-394-06-350-03-25-USAJ and VB101624.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On November 10, 2006, the agency submitted a
motion for a decision without a hearing. On May 31, 2007, the AJ
issued a decision without a hearing finding that complainant failed
to establish a prima facie case of disability discrimination. The AJ
found that complainant "has not shown that other applicants who were
not veterans and who were not disabled were treated any more favorably
than she was." Additionally, the AJ found that "[c]omplainant really
seems to be complaining about the veterans' preference which was given.
However, being a 'non-veteran' is not a protected group under any statute
enforced by the Commission." The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in finding no
discrimination. Complainant argues that the agency used "illegal
procedures and policies," including applying veterans' preference(s)
in a discriminatory manner, to exclude her from consideration for
the position in question. In response, the agency argues that the AJ
properly issued a decision without a hearing and urges the Commission
to affirm its final order.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] 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 Chapter 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").
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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
To prevail in a disparate treatment claim such as this, 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
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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case
of disability discrimination,1 we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions. A Human Resources
Specialist submitted an affidavit in the record stating that complainant
was not placed on the candidate referral list for Vacancy Announcement
No. MPA-394-06-350-03-25-USAJ because "she did not meet the eligibility
requirements for the recruitment authorities outlined in the vacancy
announcement." With respect to Vacancy Announcement No. VB101624, the
Chief of the DEU stated that complainant was not placed on the candidate
referral list because they received "a sufficient number of compensable
disabled veterans for the certificate of eligibles." He noted that
"[b]y law, compensable veterans float to the top of our competitive
delegated examining certificates. In addition, preference-eligible
veterans cannot be passed over to select non-veterans."
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. We find that complainant failed to provide any evidence
of pretext in the record. On appeal, complainant provides no evidence
of pretext and does not present any information that would suggest that
the agency's actions were motivated by discriminatory animus towards
complainant's disability.
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue
of material fact is in dispute. Complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory
animus towards her. We discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, the agency's final
order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
February 12, 2009
Date
1 For purposes of analysis only, we assume, without finding, that
complainant is an individual with a disability,
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0120073288
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073288