01986295
02-13-2001
Marina Gonzalez-Lord, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Marina Gonzalez-Lord v. Department of Health and Human Services
01986295
02-13-01
.
Marina Gonzalez-Lord,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01986295
Agency Nos. FDA 050-97, et. al.
DECISION
INTRODUCTION
On August 14, 1998, Marina Gonzalez-Lord (complainant) initiated an appeal
to the Equal Employment Opportunity Commission (EEOC or Commission)
from the final decision of the Department of Health and Human Services
(agency), concerning 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, and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether the EEOC Administrative Judge (AJ),
in making the decision not to hold a hearing, erred in determining that
there were no genuine issues of material fact.
BACKGROUND
Complainant, a Doctor of Osteopathy (D.O.), claimed that she was
discriminated against on the basis of race (Hispanic), national origin
(Cuban), sex and age (DOB: 1/10/52) when she was not selected for
seven positions advertised by the Food and Drug Administration (FDA)
from August 22, 1995 through February 23, 1996 (Complaint 1).<2>
Complainant also applied for five positions with various Institutes of
the National Institute of Health (NIH) for which she was not selected
including: Biologist, GS-401-07-09 on August 11, 1995 (Complaint 2);
Health Scientist Administrator, GS-601-12/14, advertised in Vacancy
Announcement No. HL-96-0038 (Complaint 3); Patient Care Assistant,
GS-303-08, advertised by NIDDK in Vacancy Announcement No. DK-96-0720
on December 6, 1996 (Complaint 4); Technical Information Specialist,
GS-1412-12/13, advertised in Vacancy Announcement No. CA-96-1947 by NCI
(Complaint 5); and Secretary advertised by HRS in Vacancy Announcement
No. HRSA-96-16/27 (Complaint 6). Furthermore, complainant's letters
and telephone calls to the Equal Employment Opportunity (EEO) Office
were not returned (Complaint 6).
Complainant filed six formal complaints on the above stated claims. The
agency conducted investigations, provided complainant with a
copy of the investigative reports, and advised complainant of her
right to request either a hearing before an AJ or an immediate final
agency decision. Complainant requested a hearing before an AJ. The AJ
consolidated the six complaints and issued a decision without a hearing
finding no discrimination.
Complaint 1
The AJ found that complainant failed to establish a prima facie case of
discrimination as to the seven positions she applied for with the FDA.
Specifically, the AJ determined that complainant failed to demonstrate
that when she was not selected for the seven positions, she was treated
differently from a similarly situated applicant, who is not a member of
her groups, under circumstances that give rise to an inference of unlawful
discrimination. The AJ found that with respect to the seven positions
complainant was either not qualified, not among the top three applicants
who could be referred, or outside the Area of Consideration. With regard
to Position 1, Consumer Safety Officer, the agency was found to have
considered complainant qualified for the position.<3> The AJ further
found that the agency sought eligible applicants in that job series on
six occasions, two for which complainant was qualified, but complainant
was not referred to a selecting official on a Certificate of Eligibles
because her rating did not make her one of the top three applicants
for the position.<4> Although complainant qualified for grades 9 and
11 with a rating of 70 for Position 2, Biologist, the AJ found that the
FDA made no requests for this position at these grades. From December
5, 1995 through June 22, 1996, complainant was rated qualified at the
Grade 6 level and listed on a Register for Position 3, Secretary. The
AJ found that complainant was never among the top three applicants and
thus was never referred. As to Position 4, Consumer Safety Technician,
the AJ determined that management decided not to fill this position. For
Position 5, Consumer Safety Technician, the area of consideration for
applicants was �Government-wide;� therefore, the AJ found complainant,
who was not employed within the government, was not eligible. Complainant
applied for Position 6, Interdisciplinary Scientist, but the AJ found
that the agency proved that she was not qualified. With regard to
Position 7, Biologist, GS-7, the AJ found that the agency considered
complainant qualified and referred her along with two other applicants
on a Certificate of Eligibles. No selection was made, however, and the
Announcement was canceled. Finally, the AJ found that complainant failed
to provide evidence from which animus could be inferred by the agency's
actions.
Complaint 2
With regard to the position of Biologist, GS-401-07-09, the AJ found that
complainant again failed to demonstrate that she was treated differently
from a similarly situated person. Of 69 applications submitted for the
position, none were rated or ranked, and the position was canceled.
A volunteer performed the needed work, but the AJ found that because
complainant was seeking a paid position, she was not similarly situated
to the volunteer.
Complaint 3
The AJ found complainant failed to make a prima facie case as to the
position of Health Scientist Administrator, GS-601-12/14 as well. The
agency determined complainant was not qualified for the position because
she did not demonstrate one year of specialized pulmonary research
experience or grant management experience as required by the position
description. Furthermore, the Vacancy Announcement was canceled after
no selection was made.
Complaint 4
The AJ found that complainant did establish a prima facie case of race
and national origin discrimination as to the Patient Care Assistant
position.<5> After complainant established her prima facie case,
the agency articulated a legitimate nondiscriminatory reason for its
selection, namely that the selectee was chosen through unanimous decision
of the interviewers; the selectee had worked in an almost identical
position at the National Institute of Diabetes; and the selectee had
the nursing skills, clinical research skills and experience with NIH.
Complainant proffered that her Knowledge, Skills and Abilities (KSAs)
were not rated properly and that the interviewers did not like her
accent. However, she presented no evidence showing that others were
rated in a different manner. Furthermore, since she was referred to
the selecting official and considered by those interviewing, the AJ
determined that complainant did not demonstrate that she was harmed by
the rating. Finally, the AJ found that complainant provided no evidence
that the interviewers did not like her accent. Therefore, the AJ found
that complainant failed to prove that she was discriminated against by
the agency when she was not selected for the position.
Complaint 5
The AJ found that complainant was not ranked and rated as one of the top
three applicants for a position of Technical Information Specialist,
GS-1412-12/13. Although complainant argued that her application had
been processed incorrectly because she should not have been examined
in a group of �outside� applicants, no evidence was presented that she
had been working for the government at the time or that she had status
as a career Federal employee. The AJ found that Complainant could not
demonstrate that she was similarly situated to the selectee who was rated
in the top three and referred to the selecting official. Therefore,
the AJ found that complainant failed to establish a prima facie case.
Complaint 6
With regard to the position of Secretary, the AJ found that complainant
failed to establish a prima facie case of discrimination on any basis
because she was treated the same as other non-status applicants. Finally,
the AJ determined that the complainant failed to demonstrate that she
suffered any harm or loss in regard to the lack of or delayed response
to her efforts to communicate with the agency in regard to the selection
or case.
On July 15, 1998, the agency's final decision implemented the AJ's
decision. On appeal, complainant contends that �there are many
contradictory and false statements/actions from the staff in the
investigative reports...� She argues that she was better qualified than
those selected by the agency, but that her education, work experience
and skills were deliberately underrated. Furthermore, with respect
to Complaint 1, she notes that she was not provided with information
about other applicants who were referred for Position 3, Secretary,<6>
or information about the headquarter applicants who were referred for
Position 1, Consumer Safety Officer.
ANALYSIS AND FINDINGS
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. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The Supreme
Court has stated that summary judgment is appropriate where the court
determines that, given applicable substantive law, no genuine issue of
material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). An issue is "genuine" if the evidence is such that a reasonable
fact-finder could find in favor of the non-moving party. Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). In the context of
an administrative proceeding under Title VII, summary judgment is
appropriate if, after adequate investigation, complainant has failed to
adduce evidence sufficient to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171 , 173
(3d Cir. 1988). In determining whether to grant summary judgment, the
court's function is not to weigh the evidence and render a determination
as to the truth of the matter, but only to determine whether there exists
a genuine factual dispute. Anderson, 477 U.S. at 248-49.
The courts have been clear that summary judgment is not to be used
as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768
(1st Cir. 1975). The Commission has noted that when a party submits
an affidavit and credibility is at issue, "there is a need for
strident cross- examination and summary judgement on such evidence is
improper." Pedersen v. Department of Justice, EEOC Request No. 05940339
(February 24, 1995).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws as to Complaints 2, 3,
4, 5 and 6, as well as to Positions 2, 4, 5, 6 and 7 in Complaint 1.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), the Commission agrees with the AJ that complainant failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for sex discrimination.
The Commission finds, however, that the AJ erred when she concluded
that there was no genuine issue of material fact with respect to
Positions 1 and 3 in Complaint 1. Specifically, complainant was not
provided with evidence regarding other applicants for the positions
of Consumer Safety Officer, GS-9/13 and Secretary. Complainant was
included among the qualified candidates for these positions, but the
agency official's affidavit is the only evidence of the selectees'
superior qualifications.<7> While we make no judgment about the veracity
or motivation of the agency official, the selectees' qualifications for
Positions 1 and 3 must be elaborated upon.
We note that the hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 6, page 6-1; see also
29 C.F.R. �� 1614.109(c) and (d). �Truncation of this process, while
material facts are still in dispute and the credibility of witnesses is
still ripe for challenge, improperly deprives complainant of a full and
fair investigation of her claims.� Mi S. Bang v. United States Postal
Service, EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley
v. United States Postal Service, EEOC Request No. 05950628 (October
31, 1996); Chronister v. United States Postal Service, EEOC Request
No. 05940578 (April 23, 1995). In summary, too many unresolved issues
remain which require an assessment as to the credibility of the witnesses.
Therefore, judgment as a matter of law for the agency should not have
been granted as to Positions 1 and 3 in Complaint 1.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED as to Complaint 2, 3,
4, 5 and 6, as well as to Positions 2, 4, 5, 6 and 7 in Complaint 1.
With respect to Positions 1 and 3 in Complaint 1, the Commission finds
that the AJ erred in issuing a decision without a hearing. Therefore,
as to Positions 1 and 3 in Complaint 1, the Commission REVERSES the
agency's final action and REMANDS the matter to the agency in accordance
with this decision and the ORDER below.
ORDER
The complaints are remanded to the Hearings Unit of the Baltimore
District Office for scheduling of a consolidated hearing in an expeditious
manner. The agency is directed to submit a copy of the complaint files to
the EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final. The agency shall provide written notification
to the Compliance Officer, at the address set forth below, that the
complaint files have been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on Positions 1 and 3
in Complaint 1 in accordance with 29 C.F.R. � 1614.109 and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
__02-13-01________________
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
______________________________
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The positions for which complainant applied included: Consumer Safety
Officer, GS-9/13, Vacancy Announcement No. DH-010 (1995 and 1996)
(Position 1); Biologist, GS-9/13, Vacancy Announcement No. DH-013
(1995)(Position 2); Secretary, GS-4/8, Vacancy Announcement No. 015-OC
(1996)(Position 3); Consumer Safety Technician, GS-5, Vacancy Announcement
No.95-321-BNS (1995)(Position 4); Consumer Safety Technician, GS-9/13,
Vacancy Announcement No.06-054 (1995)(Position 5); Interdisciplinary
Scientist, GS-11,Vacancy Announcement No. 96-230-C (Position 6); and
Biologist, GS-7, Vacancy Announcement No. 96-424-DE (1996)(Position 7).
3According to the agency, complainant received a numerical score of 85
based on a supplement she completed in which she identified up to 10
functional areas that matched her background.
4The Rule of Three within the Personnel Regulations indicates that unless
an exception is made, only the three top ranked applicants are referred
to a selecting official for each vacant position.
5Complainant did not proffer evidence that age was a determining factor.
6Complainant notes that she was deemed qualified at the GS-6 level with
a score of 100 for this position.
7According to the agency official, complainant's scores were not among
the top three, resulting in her not being referred.