01a51356
03-11-2005
Mary B. McElroy, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Mary B. McElroy v. Department of Veterans Affairs
01A51356
March 11, 2005
.
Mary B. McElroy,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51356
Agency No. 200L-0586-2003103431
Hearing No. 130 2004 00108X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
Final Order dated October 25, 2004, concerning her formal 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.
Complainant is a Clinical Dietetic Technician, GS-0640-06, at the agency's
Nutrition and Food Service facility in Jackson, Mississippi. Believing
that she was a victim of discrimination, complainant contacted the EEO
Office on June 26, 2003. Informal efforts to resolve complainant's
concerns were unsuccessful.
On August 8, 2003, complainant filed the instant formal complaint.
Therein, complainant claimed that she was the victim of unlawful
employment discrimination on the bases of race, color, age, and reprisal
for prior EEO activity.
In a Notice of Acceptance dated August 21, 2003, the agency informed
complainant that the following claim was accepted for investigation:
Were you discriminated against based on your race (African-American),
color (dark-skinned), age (47), and in reprisal for prior EEO activity
when you were not selected for the Position of Dietician, GS-630-11,
as announced in Vacancy Announcement Numbers VAR-SO-03-077, SO-03-068,
and VAR-SO-3-1950, on or around June 25, 2003?
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or,
alternatively, to receive a final decision from the agency. Thereafter,
complainant requested a hearing before an EEOC Administrative Judge
On October 18, 2004, the AJ issued a decision without a hearing. The AJ
determined that complainant's complaint was comprised of the matter
identified above. However, the AJ further determined that during the
investigation, complainant asserted that she was not claiming that
she was not selected for the subject position, but rather that she was
not allowed to apply for the subject position. The AJ then addressed
the investigated matters under the headings �Failure to Promote� and
�Failure to Notify About the Position.�
Regarding �Failure to Promote,� the AJ determined that because complainant
failed to meet the educational requirements for the subject position
(four year bachelor's degree), complainant failed to establish a prima
facie case of discrimination. The AJ noted that complainant �voiced
concerns� that a white female under the age of 40 was hired as a temporary
contract employee during the recruitment and selection process. However,
the AJ determined that this hired contract employee was not similarly
situated to complainant. The AJ noted that this contract employee
has a four year bachelor's degree; finished her internship; and was
waiting to take the registered dietician's examination. The AJ noted
further that the contract employee was not an agency employee, although
complainant is an agency employee. Finally, the contract employee was
not hired permanently, and the contract position was terminated after
two permanent Registered Dietician positions were filled.
Regarding Failure to Notify,� the AJ noted that complainant argued that
she was informed that the positions were canceled, so that she could not
apply for the positions. The AJ determined, however, that complainant was
not qualified for the positions. The AJ concluded that complainant did
not establish a �prima facie case of discrimination in her not knowing of
the job announcement as there has been no showing of an adverse action.�
The agency's October 25, 2004 Final Order implemented the AJ's decision.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
The Commission finds that the AJ's findings of fact are supported by
substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's race, color, age or reprisal. We discern no basis
to disturb the AJ's decision.
We AFFIRM the agency's final order implementing the AJ's finding of
no discrimination.
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
March 11, 2005
__________________
Date