Lucretia Daniel, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 23, 2007
0120070853 (E.E.O.C. May. 23, 2007)

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