0120110506
09-07-2012
Martha Scott, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Martha Scott,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110506
Hearing No. 430-2009-00271X
Agency No. 2004-0652-2008104773
DECISION
Complainant timely filed an appeal from the Agency's September 23, 2010, 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues on appeal are (1) whether the Administrative Judge (AJ) properly issued a decision without a hearing on Complainant's claim that the Agency discriminated against her on the bases of race (African American) and age (55) when it did not select her for the position of Pharmacy Technician (Prosthetics), GS-661-6 target GS-7, and (2) whether the AJ properly found that Complainant had not proven that she had been discriminated against, as alleged..
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Pharmacy Technician in Inpatient Services at the Agency's Veterans Affairs Medical Center in Richmond, Virginia. On October 29, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and age (55) when it did not select her for the position of Pharmacy Technician (Prosthetics).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing. On August 18, 2009, the Agency filed a Motion for a Decision without a Hearing. Complainant filed a Response to the Motion on September 11, 2009, and the Agency filed a reply on September 16, 2009. The AJ assigned to the case granted the Agency's Motion and issued a decision without a hearing on August 31, 2010, in favor of the Agency.
In her decision, the AJ determined that a decision without a hearing was appropriate because Complainant failed to raise any genuine issues of material fact. The AJ concluded that the investigative record was adequately developed and that Complainant had an opportunity to respond to the Agency's motion.
The AJ found that Complainant established a prima case of race and age discrimination because the selectee, a 42-year-old White candidate, was not of Complainant's protected classes. The AJ also found that the Agency articulated legitimate, nondiscriminatory reasons for its action. In that regard, the AJ noted that the Agency stated that it chose the best qualified person for the position. The Agency initially advertised the position internally but re-advertised it because, according to the supervisor of the vacant position, the three applicants on the certification list did not have strong backgrounds in prosthetics and customer service. Further, the AJ noted that the three-member interview panel gave the highest score to the selectee because she provided detailed responses to the five interview questions. The selectee worked in the Agency's Outpatient Prosthetics Services, where the vacancy arose, and her interview responses highlighted her experience with prosthetics equipment and customer service.
In addition, the AJ found that Complainant had not shown that the Agency's reasons were a pretext for discrimination. Although Complainant asserted that she was qualified for the position and had worked at the Agency longer than the selectee, Complainant did not proffer any evidence that her qualifications were plainly superior to those of the selectee. The AJ found that the selectee's interview answers demonstrated her ability to work with patients in Outpatient Prosthetics Services as well as her experience with prosthetics and customer service. The AJ concluded that the Agency reasonably relied on these factors, which were identified in the vacancy announcement. The AJ further concluded that, although Complainant alleged that the Agency pre-selected the selectee, the evidence did not show that the alleged pre-selection was based on race or age. Accordingly, the AJ found that Complainant had not shown that anything other than the announced selection criteria motivated the Agency's decision not to select her for the position.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates the arguments she raised in her Response to the Agency's Motion for a Decision without a Hearing. She asserts that the Agency has not explained why the selectee was better qualified than Complainant and or why the Agency did not select Complainant from the first certification list. In addition, Complainant argues that the AJ's decision ignores her claim that the Agency re-advertised the position to avoid selecting Complainant or the other two applicants on the first list. Complainant attaches pharmacy records to demonstrate that "she disseminated directly to patients on occasion."
In response, the Agency argues that Complainant has not identified any genuine issues in dispute and has not shown that she was clearly more qualified than the selectee.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both an AJ's determination to issue a decision without a hearing, and the decision itself, 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 Chap. 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").
ANALYSIS AND FINDINGS
Decision without a Hearing
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 United States 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 Corp. 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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250, n.5. In the hearing context, this means that the Administrative Judge must enable the parties to engage in the amount of discovery necessary to respond properly to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an Administrative Judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In this case, we find that the AJ's decision to issue a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's Motion for a Decision without a Hearing, and she responded to the Motion. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that no genuine issues of material fact exist. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim such as this, 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 initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
After a review of the record, we find that Complainant has not shown that the Agency discriminated against her on the basis of race or age when it did not select her for the Pharmacy Technician (Prosthetics) position. The evidence establishes that the Agency chose the selectee because her answers to the interview questions demonstrated her background in prosthetics and customer service and her ability to work with patients. Complainant has not shown that she was clearly more qualified than the selectee. Her assertion that she dispensed medication to patients "on occasion" does not establish that her customer service experience was superior to the selectee's experience, or that considerations of race or age motivated the selection. Further, although Complainant asserts that the Agency pre-selected the selectee, she has not shown that the selection was based on race or age. Similarly, Complainant has not shown that the Agency's decision to re-advertise the vacancy was discriminatory. She has offered no evidence to refute the Agency's explanation that it re-advertised the position because the applicants on the first certification list did not have strong backgrounds in prosthetics and customer service. On the contrary, Complainant acknowledged to the EEO Investigator that she had not worked with prosthetics. Report of Investigation Affidavit B-1 at 7. We therefore find that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant and that Complainant has not shown the reasons to be pretextual.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the agency's final order, which implemented the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 7, 2012
Date
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0120110506
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110506