Lana Anders, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 30, 2005
01a51410 (E.E.O.C. Mar. 30, 2005)

01a51410

03-30-2005

Lana Anders, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Lana Anders v. Department of Veterans Affairs

01A51410

March 30, 2005

.

Lana Anders,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A51410

Agency No. VI22-2003103248

Hearing No. 340-2003-03692X

DECISION

Complainant timely initiated an appeal from the agency's final

order concerning her equal employment opportunity (EEO) complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 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. For the following reasons, the Commission affirms

the agency's final order.

The record reveals that complainant, a Transfer Coordinator at the

agency's Loma Linda Healthcare System facility, filed a formal EEO

complaint on February 24, 2003, alleging that the agency discriminated

against her on the bases of her perceived disability (cancer) and age

(D.O.B. October 1, 1940) when she was not selected for the position of

VISN 22 Network Transfer/Case Management Coordinator on or about August

30, 2002.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination.

The AJ concluded that after viewing the evidence in a light most favorable

to complainant, a decision without a hearing was appropriate as there were

no genuine issues of material fact in dispute. The AJ further found that

even assuming, arguendo, that complainant established a prima facie case

of age and disability discrimination, the agency nonetheless articulated

legitimate, nondiscriminatory reasons for its actions. Specifically,

the AJ found that all three of the selection panel members stated

that the selectee was clearly the better choice for the position as

her interview was superior to that of complainant, and the selectee had

more relevant experience than complainant. (Investigative Report, 5-7).

The AJ also found that one of the selecting panel members stated that if

he had not had previous experience with complainant and known her to be

a very strong candidate for the position at issue, his "decision would

have been made in two seconds...[because] it was a clear interview win

for [the selectee]." (I.R., B-5, 6). The AJ concluded that complainant

failed to show that the agency's articulated reasons were a pretext for

unlawful age or disability discrimination.

The agency's final order implemented the AJ's decision. On

appeal, complainant reiterates numerous contentions regarding her

qualifications, and the reasons for her not being "in top form during

the interview." (Complainant's Brief on Appeal, 1).

As an initial matter we note that, as this is an appeal from a FAD

issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the

agency's decision is subject to de novo review by the Commission. 29

C.F.R. � 1614.405(a). 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, it is not appropriate for an AJ to issue a decision without

a hearing. In the context of an administrative proceeding, an AJ may

properly issue a decision without a hearing only upon a determination

that the record has been adequately developed for summary disposition.

Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,

2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,

2003).

After a careful review of the record, the Commission finds that a decision

without a hearing was appropriate, as no genuine dispute of material

fact exists. We concur with the AJ's finding that complainant did not

establish that the agency's articulated reasons for her non-selection were

pretextual, as she failed to show that her qualifications for the position

at issue were clearly superior to those of the selectee. Accordingly,

we affirm the agency's final decision finding no discrimination.

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 (S0900)

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 (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

March 30, 2005

__________________

Date