Mary B. McElroy, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 11, 2005
01a51356 (E.E.O.C. Mar. 11, 2005)

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