0120070853
05-23-2007
Lucretia Daniel, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Lucretia Daniel,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070853
Hearing No. 250-2005-00226X
Agency No. 200L06142004104338
DECISION
On November 27, 2006, complainant filed an appeal from the agency's
October 27, 2006, 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 Equal Pay Act of 1963 (EPA), as amended,
29 U.S.C. � 206(d) 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.
The issues presented herein are whether the agency discriminated against
complainant on the bases of her race (African-American) and/or sex
(female) and/or in reprisal for prior EEO activity when:
(1) on August 12, 2004, Complainant was not selected for position of
Supervisory Police Officer, GS-083-8, Vacancy Announcement No 048-04; and
(2) on August 12, 2004, Complainant learned she was hired at a lower
grade level than two male officers.
During the relevant time, complainant worked as a Police Officer, GS-7,
step 6, at the VA Medical Center in Memphis, Tennessee. On November 2,
2004, she filed an EEO complaint alleging that she was discriminated
against as stated above. At the conclusion of the agency's investigation,
complainant was provided 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. The AJ assigned
to the case determined on his own motion that the complaint did not
warrant a hearing, and over complainant's August 15, 2006 objections,
issued a decision without a hearing on September 22, 2006.
The AJ made the following findings of fact: Complainant was hired by the
Chief of Police Service (the Chief) in 1994.1 In mid-2004, complainant
applied for the position of Supervisory Police Officer, GS-083-8.
However, the agency selected her coworker (GR)(Caucasian, male) for
the position. Complainant expressed her belief that the agency selected
GR for the position because he had worked with the agency the longest.
She, however, believed she was more qualified for the position because she
possessed a Bachelor of Science degree in Criminal Justice and Correction,
and was an honor graduate from her university where she graduated in
the top 10% of her class. Moreover, she noted that, prior to working
for the agency, she worked as a police officer for two years with the
Clarksville Police Department.
Complainant further stated that she was hired as a GS-5 in 1994. However,
approximately 10 years later, the agency hired two Caucasian males (RV and
RS) as GS-7s. The Chief testified that he hired all outside applicants as
GS-5s, and around 2000, he was able to get the journeyman Police Officers'
grade increased to GS-7. A few years later, the Chief asserted that he
worked to entice agency Police Officers, who were GS-6s, to move from
facilities around the country to Memphis as GS-7s.2 The agency hired
RV and RS through Memphis' recruitment efforts. The Chief noted that,
at the time of the subject hires, complainant held the grade of GS-7.
The AJ found that complainant failed to establish a prima facie case
of race or sex discrimination or reprisal. He the assumed arguendo
that complainant established a prima facie case of discrimination,
but determined that the agency articulated legitimate nondiscriminatory
reasons for its actions. Specifically, (1) GR had more time-in-grade
and supervisory experience than complainant; and (2) the Chief "hired"
RV and RS as employees of the agency; and complainant's hiring took
place in 1995, whereas RV and RS were transferred in 2004, making the
claim untimely.
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. Complainant filed the present appeal on November 27,
2005.3
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).
After a careful review of the record, we find that the AJ properly
issued a decision without a hearing because complainant has failed to
show that a genuine issue of material fact exists. Assuming arguendo
that complainant established a prima facie case of discrimination
with respect to claim (1), the agency has clearly set forth legitimate
nondiscriminatory reasons for selecting GR. Specifically, GR had more
time-in-grade and supervisory experience than complainant. Complainant
has not shown that these reasons are pretext for unlawful discrimination.
With respect to claim (2), assuming that claim was timely raised, the
record reveals that, unlike complainant, RV and RS were employees of the
agency when they were transferred to Memphis, and the Memphis facility
sought to recruit highly qualified candidates by offering them GS-7
positions. Antosz et al. v. Department of Veterans Affairs, EEOC Appeal
No. 07A30031 (May 13, 2004)(compensation of comparator at a higher rate
for recruitment purposes is "a factor other than sex" under the EPA).
For the foregoing reason, we concur with the AJ's determination and find
that summary judgment was appropriate in this case. Based on a thorough
review of the record and the contentions on appeal, including those not
specifically addressed herein, we affirm the agency's order.
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
____5/23/07_______________
Date
1 On January 22, 1995, one day before the end of her probationary period,
the agency terminated complainant's probationary employment. She filed
an appeal on the termination with the Merit Systems Protection Board
(MSPB), and the MSPB reinstated her into her position thereafter.
2 The job announcement restricted the hires to agency employees.
3 Although the agency argued that complainant's appeal was untimely filed,
the record reveals that complainant's attorney timely mailed the appeal
on November 27, 2005.
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0120070853
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070853