0120112880
10-17-2011
Janice L. Cagle, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Janice L. Cagle,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112880
Hearing No. 430-2010-00045X
Agency No. 2004-0318-2009100832
DECISION
On May 13, 2011, Complainant filed an appeal from the Agency’s April
13, 2011, 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., and 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 which found that Complainant
was not discriminated against when she was not selected for two positions.
ISSUES PRESENTED
The issues presented in this case are whether the EEOC Administrative
Judge (AJ) properly issued a decision without a hearing and whether
Complainant established that she was subjected to discrimination on the
bases of age and reprisal when she was not selected for two positions
for which she applied.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a GS-7, Program Support Assistant at the Agency’s Salisbury
Veterans Affairs Medical Center facility in Winston-Salem, North Carolina.
Complainant applied for the position of Veteran’s Service Representative
(VSR), GS-7 target 11 under vacancy announcement numbers 2008-496A
and 2008-91A-WS. For these positions, each applicant was required to
complete a Knowledge, Skills and Abilities, and Qualifications (KSAQ)
questionnaire. Each component of the KSAQs was graded on a scale
of 1-5. Applicants with qualifying scores were then interviewed and
their interview responses were rated on a scale of 1-5. Applicants’
educational backgrounds were also considered and rated on a scale of
1-5. Based on KSAQs, interview performance, and educational background,
applicants could receive a total of 55 points. Complainant was
not selected for either position. For the position listed under
VAN 20008-496A, Complainant was assessed a total of 13 out of 25
possible points. Among the 32 qualified candidates, Complainant did
not qualify for an interview because of her low KSAQ scores. Therefore,
Complainant was not interviewed, her application was not presented to the
selecting official for consideration, and she did not proceed through
the application process. Sixteen candidates were eventually selected
for this position.
For the position advertised under 2008-91A-WS, Complainant’s KSAQs
were sufficient of qualify for an interview. Complainant was assessed
a total of 28 out of 55 points. Specifically, Complainant received 14
points for her interview, 11 points for her KSAQs, and 3 points for her
Bachelor's degree. Approximately 30 candidates, including Complainant,
were then forwarded to the selecting official, for consideration.
The selecting official reviewed the KSAQs and interview assessments for
all of the candidates forwarded to her. After a review, she selected
the 18 highest scoring applicants. All of the applicants selected had
received at least 30 points from the selection panel. Because Complainant
only received 28 points, she was not one of the higher scoring candidates
and was not selected.
Complainant asserts that she should have been awarded one of the VSR
positions at issue because of her 33 years of government service,
her educational background (Bachelor's degree), and her two previous
“Exceptional” annual performance evaluations.
Therefore, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of age (56) and reprisal for
prior protected EEO activity when:
1. On October 27, 2008, she was notified by Human Resources that she was
not selected for the Veteran’s Service Representative, GS-7 target 11,
listed under Vacancy Announcement Number 2008-496A; and
2. On February 16, 2009, she was notified by Human Resources that she
was not selected for the position of Veterans Service Representative,
GS-7 target 11, under Vacancy Announcement Number 2008-91A-WS.
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. When the Complainant did not object,
the AJ assigned to the case granted the Agency’s December 10, 2010,
motion for a decision without a hearing and issued a decision without
a hearing on March 30, 2011. The AJ found that Complainant failed to
establish a claim of reprisal because she was unable to show a causal
connection between her prior EEO activity, which occurred two years
earlier and the present case. Moreover, the AJ found that the selecting
officials in this case were different from those of the last case and
the selecting officials in this case affirmed that they were not aware of
Complainant’s prior EEO activity. Next, the AJ found that Complainant
failed to establish a claim of age discrimination. First, the AJ found
that Complainant did not present any real evidence in support of her clam
other than pointing out that she is older than several of the selectees.
However, for Vacancy Announcement 2008-496A, 9 out of 16 selectees were
over the age of 40. For Vacancy Announcement 2008-91A-WS, 6 out of 11
candidates were over the age of 40. The AJ found that overall more
than 50% of the selectees for both positions were over 40 years of age,
with five of those selectees also being over the age of 50.
Notwithstanding, the AJ found that the Agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that Complainant was
not selected for either position because she had a number of grammatical
errors on her KSAQs. Based on the numerous errors, Complainant was
deemed to be deficient in terms of grammar, spelling, word usage, and
punctuation. Further, the AJ found that Complainant failed to show
that she was obviously the most qualified candidate, as the record
did not support that she was so plainly superior to the selectees,
as to justify reversing the Agency’s decision. The AJ found that in
the absence of evidence indicating a discriminatory motive, and Agency
was free to choose between candidates who have different but equally
desirable qualifications. The AJ determined that Complainant failed
to show that the Agency’s articulated legitimate, nondiscriminatory
reasons were pretext for discrimination. 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
Complainant did not submit a brief on appeal but did submit a copy of
a Final Agency Decision from another case, which showed that she had
not been selected for previous positions. The Agency requests that its
decision, finding no discrimination, be affirmed.
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, at 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. Dep’t of Def., EEOC Appeal No. 01A24206 (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).
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that the AJ properly issued
a decision without a hearing as there are no material facts at issue
in this case. We also find that the AJ correctly determined that
Complainant failed to show that she was discriminated against as was
alleged. Specifically, we find that even if we assume arguendo that
Complainant established a prima facie case of discrimination based on age
and prior EEO activity, the evidence shows that the Agency articulated
legitimate, nondiscriminatory reasons for its actions with respect
to both nonselections. The record shows that the selecting official
for each VAN found that Complainant’s KSAQs contained a number of
grammatical errors. The selecting officials explained that based on
the duties and responsibilities of the VSR positions, they were seeking
candidates with strong writing skills, and based on Complainant’s KSAQs,
they deemed her deficient in terms of grammar, spelling, word usage, and
punctuation. We find that Complainant has not provided any persuasive
evidence, indicating that a discriminatory reason more likely than not
motivated management. In fact, the record shows that management offered
to help Complainant with her KSAQs for future positions but she refused.
We also find, that the prior case that Complainant provided in support
of this complaint also shows that it was Complainant’s low KSAQs
that prevented her from getting the position she desired. We find that
Complainant has not shown that the Agency’s articulated legitimate,
reasons were pretext for discrimination.
Lastly, we find that Complainant has not shown that the disparities in
qualifications between her and the selectees are “of such weight and
significance that no reasonable person, in the exercise of impartial
judgment, could have chosen the [selectee] over [her] for the job
in question.” Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88
Empl. Prac. Dec. P 42,608 (11th Cir. 2006), cert. denied, 127 S.Ct. 1154
(Jan. 22, 2007). Accordingly, we find that Complainant has failed to
show that the actions taken by the Agency involved discriminatory animus
against her age and/prior EEO activity.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final
Order which found that Complainant failed to show that she was subjected
to discrimination 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
_10/17/11_________________
Date
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0120112880
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112880