01a54596_r
12-20-2005
Maureen Bell, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Maureen Bell v. Department of Veterans Affairs
01A54596
December 20, 2005
.
Maureen Bell,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A54596
Agency No. 2003-0756-2004102756
Hearing No. 360-2005-00107X
DECISION
Complainant filed a timely appeal with this Commission from the
agency's final order dated May 18, 2005, implementing the decision of
an EEOC Administrative Judge (AJ) dismissing her formal EEO 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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
The record reveals that complainant, a Nurse Practitioner, Nurse III,
Step 4, at the agency's El Paso VA Healthcare System in El Paso, Texas,
filed a formal EEO complaint on July 12, 2004. Therein, complainant
claimed that she was the victim of unlawful employment discrimination
on the bases of race (Caucasian), sex (female), and age (D.O.B. 4/19/50)
when:
on April 19, 2004, she became aware that three other applicants with less
experience were hired at a higher rate of pay than she was receiving.
The record reveals that on January 27, 2002, complainant began her agency
employment by accepting an appointment at the grade of Nurse III, Step 1.
The record further reveals that the Nurse Professional Standards Board
(NSPB) which recommended complainant's initial appointment, including
grade and pay, was in Oklahoma City, Oklahoma, and had no participation
from any agency official from the El Paso facility.<1> The Oklahoma
City NSPB's recommendation of complainant's grade and pay level was
based on a report of credentials and professional experience submitted
by complainant. The record reveals that at the completion of her
two-year probationary period, complainant received a two-step increase
in pay. Complainant identified three newly hired Nurse Practitioners
who were purportedly treated more favorably as related to rate of pay;
and complainant noted that the local NSPB recommended their initial
appointments, including grade and pay.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an AJ. Thereafter,
the agency filed a Motion to Dismiss.
In its motion, the agency argued for the AJ to dismiss the complaint on
procedural grounds, pursuant to 29 C.F.R. � 1614.109(b). The agency
argued that complainant's complaint should be dismissed pursuant to
29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The agency
further argued that complainant was not aggrieved because she suffered no
harm due to the alleged discriminatory action. The agency argued that
complainant's claim constituted a collateral attack on the results of
the appointment process in 2002. Specifically, the agency argued that
complainant's claim is a matter within the jurisdiction of the agency's
administrative process and not the EEO process. The agency argued that
complainant's dissatisfaction with her initial rate of pay was the
equivalent of an "undesirable work assignment;" and that complainant
felt that she should be retroactively compensated at a higher rate
of pay. Further, the agency argued that complainant's claim that the
appointments of the three identified Nurse Practitioners made two years
after her initial appointment was "a disingenuous, backdoor attempt to
obtain another review of her initial appointment."
On May 11, 2005, the AJ granted the agency's motion to dismiss. The AJ
determined that the agency properly set forth the undisputed facts
and applicable law in its motion, incorporated it in his decision,
and found no discrimination. The AJ found that complainant failed to
state a claim, finding that her complaint constituted a collateral attack
on the agency's administrative process relating to the certification of
professional qualifications and standards of nurse practitioner candidates
that precedes an offer of employment with the agency.
Moreover, the AJ addressed the merits of complainant's claim, although
the agency's motion, referenced above did not contain any arguments on
the merits.
Specifically, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination.
On May 18, 2005, the agency issued a final order implementing the AJ's
dismissal of complainant's complaint on the grounds of failure to state
a claim.
As a threshold matter, the Commission notes that in the AJ's decision,
the analysis was, in part, merit-based. Specifically, the AJ stated
that the agency articulated legitimate, nondiscriminatory reasons for
its actions which complainant failed to show pretext. The Commission
further notes, however, that the AJ adopted, as his own, and incorporated
by reference the agency's motion to dismiss, with conclusions of
law that assert that complainant's complaint should be dismissed on
procedural grounds. Therefore, we will not address the merits of
complainant's complaint herein.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993).
In the instant case, however, we find that complainant clearly and
repeatedly claims that she was discriminated against when she was
paid less than the newly three newly hired Nurses with less experience.
We determine that the record does not support a finding that complainant's
claim constituted a collateral attack on the NSPB determination.
Moreover, the Commission determines that the claim raised in the instant
complaint, three purportedly lesser qualified applicants were hired
at a lesser rate than she, addresses a personal loss or harm regarding
a term, condition or privilege of complainant's employment. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994).
Accordingly, the agency's final action, implementing the AJ's dismissal
of the instant complaint for failure to state a claim is REVERSED.
The complaint is REMANDED to the agency for further processing in
accordance with this decision and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC San Antonio
District Office a request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notifications to the Compliance Officer
at the address set forth below that the request and complaint have been
transmitted to the Hearings Unit.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(1994 & Supp. IV 1999). 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 (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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
December 20, 2005
__________________
Date
1The record reveals that during the relevant time, the El Paso facility
did not have a local NSPB.