01993465
09-19-2002
Linda J. Powell, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Linda J. Powell v. Department of Veterans Affairs
01993465
September 19, 2002
.
Linda J. Powell,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01993465
Agency No. VA Case No. 95-1116
DECISION
Complainant timely appeals from a final agency decision (FAD) of February
23, 1999. Her appeal concerns her complaint of unlawful 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 appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged that
she was discriminated against on the basis of her race (Black) when she
was denied on-the-job training and other opportunities for advancement
that the agency provided to employees not of her race. Specifically,
complainant alleged that she was discriminated against, when:
in September 1993, a white employee (E1) was hired at a higher
starting salary than the average salary paid to similarly situated
black employees;
complainant was not afforded the skill development opportunities
and promotion provided to a white employee (E2) who was selected for
promotion for a position under VN 15 (94) for which complainant was
referred for consideration, but not selected<1>;
complainant was bypassed for an on-the-job training opportunity and
promotion under announcement VN 50 (94) provided to a white employee
(E3);
on July 11, 1994, complainant was denied, or delayed, tuition
reimbursement for certain courses, while a white employee received
timely payment and payment for courses unrelated to his duties; and
on July 31, 1994 complainant learned that an Hispanic employee, who had
been reinstated as DRT, GS-6/10 on July 25, 1992, had been pre-selected
for a position (VN 80 (92)) in the MRI section for which complainant
applied.
The record reveals that during the relevant time, complainant was
employed as a Diagnostic Radiology Technologist (DRT), GS7, at the
Veterans Administration Medical Center (VAMC) Radiology Department
in Houston, Texas. Her immediate supervisor was RMO1.<2> Complainant
unsuccessfully sought on-the-job training, but was denied. She also
applied for positions, was certified as eligible for promotion to GS8,
but was not selected, whereas lower graded workers not of her race, were
promoted to the positions complainant sought. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on March 1, 1995.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. She initially
requested a hearing, but, she withdrew her request in June 1997 and asked
for an agency decision.<3> This appeal is from the agency's Final Agency
Decision dated February 23, 1999.
On appeal, complainant contends that the agency has not articulated
clear and specific reasons for selecting E2 and E3 for promotions and in
denying complainant the opportunity to train. Complainant also cites
to the record that shows a difference in treatment for complainant and
other African American technicians and she asserts that this shows the
agency's action were a pretext to discriminate The agency requests that
we affirm its FAD.
ANALYSIS
As an initial matter, the Commission affirms the agency's finding of
no discrimination with respect to issues 1, 4 and 5. In this case, the
Commission finds that complainant failed to present evidence that more
likely than not, the agency's articulated reasons for its actions were a
pretext for discrimination with regard to claims, 1, 4 and 5. With regard
to the differential in pay, the record shows that complainant earned more
than the white employee to whom she compared herself. With regard to the
reimbursement, the record shows that complainant was reimbursed and that
the timing of her submissions contributed to the delay in payment. With
regard to the promotion of E4, the record substantiates the agency's
decision that E4 was viewed as better qualified. There was no showing
that these decisions were a pretext for discrimination.
With respect to issues 2 and 3, however, we reverse the agency's
findings. We note that the agency argued that it provided the
opportunities to the individuals who showed the most initiative. The
record shows that complainant exhibited a great deal of initiative, but
the opportunities for advancement were only provided to white or Hispanic
employees. The record does not substantiate the agency's stated reasons.
Therefore, we reverse the agency with respect to these issues 2 and 3
and we affirm with regard to 1, 4 and 5.
Section 717 of Title VII of the Civil Rights Act of 1964, as amended
in 1972, provides that all federal employment actions shall be made
free of discrimination. 42 U.S.C. 2000e-16. In accordance with 29 CFR
1614.102(a), federal agencies must not discriminate and federal agencies,
and as part of their EEO programs, are expected to identify and eliminate
any discriminatory practices and policies which disadvantage workers of
a certain race, sex, or national origin group, age or disability status.
To prevail in a disparate treatment claim under Title VII, 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 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). The record shows that E2, E3 were
selected to receive the training which prepared them for a supervisory
position. The evidence reveals that similarly situated persons not of
complainant's race received promotional opportunities that complainant
was denied.
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanations are a pretext for discrimination.
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); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
We find that complainant has shown, by a preponderance of the evidence,
that the agency's explanations are a pretext for race discrimination
with regard to the training and promotional opportunities provided
to E-2 and E3. The agency only provided the training opportunities
to employees of a different race. The agency said that E2 received
training on PACS because he took the initiative and sought to work on
PACs long before anyone else had. Yet, the record shows that the agency
designated him, and him alone, for this opportunity. The record shows
that around September 1992 E2 (white male) began working with PACS.
The agency's articulated reason for denying complainant a similar
opportunity was that complainant's lack of initiative was a problem,
but the record established that complainant had exhibited substantial
initiative. Complainant started asking around September 1992 why she
couldn't rotate through PACs. The record shows that she said she later
spoke with her immediate supervisor and with RMO2. The agency held a
staff meeting where the topic of rotational assignments was raised, and
agency officials stated that E2 was to be the sole trainer. She wrote
to agency officials saying �I am requesting to rotate through PACs and
MAMM's� [which was a reference to the Mammography section]. The record
confirms that complainant was informed that cross-training would not be
allowed during duty hours and that she would have to �observe� during
off-duty hours. Yet, E2 received training in the PAC system for one
year during regular duty hours.
With regard to complainant's initiative, complainant had taken the
initiative to obtain mammography training through Midwestern State
University and she has also passed the registry.
Similarly, the agency provided no reason for the on-the-job training
provided to E3 or her elevation in grade. There is nothing in the record
to suggest that E3 exhibited any more initiative than complainant. The
record shows that complainant, by comparison, received numerous
certificates of achievement and a letter of recommendation dated April
20, 1994, from a medical doctor, commending complainant for her wealth
of knowledge.
With regard to issue 3, the record shows E3, white female, was the
beneficiary of two agency decisions. Early in 1994, E3, then a GS6, was
allowed to rotate PACS and gain experience without a change in grade.
Complainant was already a GS7 technician and was yet denied opportunities
to rotate through other divisions. E3 was reassigned to PACS sometime
during 1993 or 1994, according to the Chief Technologist, although there
is no documentation of that action in E3's official personnel folder or
in records maintained by Radiology Service. The record indicates that
she had not had prior PACs experience and that she performed the duties
that complainant performed.
VN 15 (94)
The record also shows that on April 17, 1994, E2 was promoted to
Supervisory DRT, GS-7, under VN 15 (94) dated March 31, 1994 (C-1).
The March 31, 1994 Promotion Certificate for position VN 15 (94),
Supervisor DRT, GS-647-8, which closed on March 10, 1994 contained
four names, including complainant's as promotion eligible to GS-8. The
position was posted as a GS-7/8/9; and the certificate of candidates
eligible for promotion to GS-8 did not contain the selectee's name.
He was not certified as eligible beyond the GS 7 rank and was placed in
a position with advancement potential to Grade 8. Complainant, a GS-7,
was certified as eligible for both a lateral reassignment to GS-7 and
for promotion to GS-8. Although complainant was referred as eligible
for reassignment and for promotion to GS-8, E2 was selected from a GS-6
position to GS-7.
The record shows that within the four years preceding the filing of the
complaint, all of the Merit Promotion vacancies were filled by whites
- - E2, complainant's supervisor, and E3. The record does show that
complainant was on the certificate of eligibles for promotion to GS-8,
whereas the selectee was not ranked as high. The record shows that whites,
with less seniority, received training on agency time and were given
supervisory authority. Blacks were not. Only one black employee had been
selected for the training that complainant sought, but the one black
was taken out of the training rotation; and she also filed a complaint.
VN 50 (94)
On July 24, 1994, E3 was promoted to a GS-7 (VN 50 (94). The position was
a supervisory position, according to E3's testimony. The record documents
that she had been placed in the PACS rotational assignment, without
competition, and then permanently promoted to a higher graded position.<4>
The agency asserted that the record is unclear as to whether complainant
applied under VN 50(94) but the record is also unclear as to whether E3
formally applied. The promotion file for VN 50 (94) has been destroyed.
The record indicates that the responsible management officials are no
longer employed by the Houston VAMC and were unavailable to testify.
The agency says that E3 had demonstrated initiative in seeking PACs
training, but the record does not show that E3 did anything that would
warrant her selection. The Administrative Officer of the Radiology
Service stated that he does not know why E3was chosen, especially in
comparison with the complainant. E3's own testimony indicates that
she and complainant performed the same functions, but E3 was provided
opportunities that led to her placement in a �supervisory� position.
E3 was a GS-6. Complainant was a GS-7, with years of experience and
whose seniority was continually bypassed.
The evidence in its totality indicates that the reasons articulated for
denying complainant the training and promotional opportunities provided
to others was a pretext for race discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM IN PART the
agency's decision with regard to issues 1, 4 and 5; and we REVERSE IN PART
the agency's final decision as to issues 2 and 3, the denial of training
opportunities and non-selections. We REMAND this case to the agency to
take remedial actions in accordance with this decision and ORDER below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes
final, the agency is ordered to provide complainant with the rank and
commensurate pay of, GS-647-08 or substantial equivalent position,
with back-pay and benefits as of July 30, 1994.
Within six months of the date this decision becomes final, the agency
is directed to provide complainant with four months of PACS training
during regular core hours. In addition, the agency is directed to provide
complainant with the opportunity to rotate through Mammography section
for a six month rotation.
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of her right to submit
objective evidence in support of any claim for compensatory damages
within forty-five (45) calendar days of the date complainant receives
the agency's notice. The agency shall complete the investigation on the
claim for compensatory damages within forty-five (45) calendar days of the
date the agency receives complainant's claim for compensatory damages.
Thereafter, the agency shall process the claim in accordance with 29
C.F.R. � 1614.108(f).
No later than sixty (60) calendar days after the date this decision
becomes final, the agency shall determine the appropriate amount of back
pay (with interest, if applicable) and other benefits due complainant,
including subsequent within grade salary increases, pursuant to 29
C.F.R. � 1614.501. Complainant shall cooperate in the agency's efforts
to compute the amount of back pay and benefits due, and shall provide
all relevant information requested by the agency. If there is a dispute
regarding the exact amount of back pay and/or benefits, the agency shall
issue a check to complainant for the undisputed amount within sixty (60)
calendar days after the date this decision becomes final. Complainant may
petition for enforcement or clarification of any amount in dispute. The
petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
The agency is directed to conduct training for the director as to
the current state of the law on employment discrimination. The agency
shall address the managers' responsibilities with respect to eliminating
discrimination in the workplace.
The agency should consider taking disciplinary action against the
selecting official if still employed with VA, who were identified
as being responsible for the discriminatory decision to non-select
complainant. The agency shall report its decision. If the agency decides
to take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.
The agency shall post the notice as referenced below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Houston VAMC facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of the
order. 29 C.F.R. � 1614.503(a). The complainant also has the right to
file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
September 19, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which found that
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. �2000e et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The United States Department of Veterans Affairs(VAMC), supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law or offered evidence
in support of such individuals.
The Houston VAMC was found to have violated Title VII when it
discriminated against an employee with respect to training and
promotions based on race. The Houston VAMC has been ordered to remedy
a candidate for permanent hire affected by the Commission's finding
that she was discriminated against based on her race. As a remedy for
the discrimination, the agency was ordered, among other things, to (1)
provide the training and promotional opportunities that had been denied,
(2) provide training in employment discrimination law to the responsible
agency officials; (3) award back pay and reasonable attorney's fees,
if applicable; and (4) post this notice. In addition, the Houston VAMC
was ordered to submit a compliance report to the Commission verifying the
completion of all ordered corrective action. The Department of Veterans
Affairs will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws.
The Houston VAMC will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
29 C.F.R. Part 1614
DATE1 The record indicates that five other individuals similarly
alleged race discrimination with regard to the selective training
in the Radiology Department.
2During 1993, complainant complained to her supervisors because she felt
African-American employees were not treated as favorably as the white
and Mexican employees in the radiology department. Four other black
employees in the same section, V (male), W (female), Y (female) and Z
(male), all filed related complaints at the same time as complainant.
All four co-complainants raised similar allegations. They withdrew the
group complaint and proceeded individually.
3 This case has a long history. The Administrative Judge remanded the
complaint file to the Department's Office of General Counsel, which
referred the matter to the Office of Employment Discrimination Complaint
Adjudication for a decision. The Office of Employment Discrimination
Complaint Adjudication remanded the case to the VA Office of Resolution
Management on April 29, 1998 for a supplemental investigation. On December
1, 1998, the Office of Resolution Management referred the case back to
the Office of Employment Discrimination Complaint Adjudication for a
final agency decision. At some point in this process, the promotion
folder for one of the two promotions at issue was �disposed of.�
4 The record is unclear. The record suggests that E3 was promoted to
GS-647-7, which caused station officials and the investigator to believe
that the claims involving E3 arose out of Vacancy No. VN 15 (94). While
E3 applied and was referred for VN 15 (94), the agency says she was
not selected. E2 was.