0120110583
06-21-2013
Michael Louis, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Michael Louis,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110583
Hearing No. 480-2010-00160X
Agency No. 200P-0691-2009103144
DECISION
On December 13, 2010, Complainant filed an appeal from the Agency's November 12, 2010, final order concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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).1 For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the Administrative Judge (AJ) properly issued a decision without a hearing on Complainant's claim that the Agency discriminated against him on the bases of race (African-Indian-American), color (tan), religion (Christian), sex (male), national origin (United States), age (55), disability, and reprisal for prior protected activity when it did not refer or select him for the position of Training Instructor; and (2) whether the AJ properly found that Complainant did not prove that he had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Supply Technician at the Agency's Greater Los Angeles Healthcare System in Los Angeles, California. On June 22, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him "based on all discrimination factors" when the Agency did not refer or select him for the position of Training Instructor, GS-1712-07, in May and June 2009. By letter dated June 30, 2009, the Agency accepted Complainant's complaint for investigation and defined the claim as:
Whether complainant was discriminated against on the bases of race, color, national origin, religion, gender, disability, age, and/or reprisal for prior EEO activity, with regard to a non-referral/non-selection when:
1. On May 6, 2009, he received notification from Human Resources that he does not meet the minimum qualifications for the position of Training Instructor, GS-1712-07, under Announcement Number 09-146 (DM), that had previously been issued as PVA 09-122(DM).
2. On June 10, 2009, he received a second notification stating that he was found not qualified for the position due to failure to meet the specialized experience requirements, and that another employee, [the selectee], had been selected.
The letter informed Complainant that he should notify the Agency within seven calendar days if he disagreed with the formulation of the accepted claim. Complainant did not so notify the Agency.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing. By letter dated November 12, 2009, the Agency transmitted the investigative file to the EEOC.
In a January 15, 2010, Acknowledgement and Order, the Supervisory Administrative Judge authorized the parties to conduct discovery, required that discovery be completed within 90 days, stated that a party may file a motion for summary judgment no later than 15 days after the close of discovery, and noted the 15-day time limit for filing a response to the motion. The Agency filed a motion for summary judgment on May 6, 2010. Complainant did not file a response to the motion.
Subsequently, in a September 14, 2010, Notice and Order Re: Assignment of Administrative Judge, a different AJ informed the parties that he had been assigned to the case. He directed the parties to notify him by September 20, 2010, if they had filed any substantive submissions other than the motion for summary judgment. The AJ provided his telephone and facsimile numbers and stated that he would assume the file was complete if he did not hear from the parties by September 21, 2010. Neither party contacted the AJ.
By decision dated September 27, 2010, the AJ granted the Agency's motion for summary judgment and issued a decision without a hearing. The AJ concluded that a decision without a hearing was appropriate because there were no genuine issues of material fact and no genuine credibility issues. The AJ defined the claim as whether "the Agency discriminate[d] against Complainant on the basis of his race, color, national origin, religion, sex, disability, or age, or retaliate[d] against Complainant when in May and June 2009, he was not referred and selected for the position of Training Instructor, GS-1712-07, under Announcement Number 09-146 (DM)."
The AJ found the following facts: On March 11, 2009, Complainant submitted an application for the position of Training Instructor under vacancy announcement PVA-09-122 (DM). After a representative from the Agency's Human Resources Department notified Complainant that the position had been re-announced under vacancy announcement PVA-09-146 (DM), Complainant again submitted an application. The vacancy announcements identified the position's qualification requirements as "one year of specialized experience equivalent to the next lower grade" and noted that "specialized experience" included "instructional methods and development of course and test materials; [and] experience evaluating, maintaining and improving learning units and individual lessons."
Eleven individuals applied for the position. A Human Resources Specialist reviewed the applications and concluded that Complainant was not qualified for the position because he did not have the requisite specialized experience. She determined that only two applicants met the specialized-experience requirement, placed their names on a Certificate of Qualified Candidates, and forwarded the Certificate to the selecting official (SO). The SO, the Nurse Manager, chose a 39-year-old African-American female for the position. The record does not disclose the selectee's religion, disability status, or prior EEO activity, if any.
Complainant's application did not cite any experience in instructional methods, developing course and test materials, or evaluating, maintaining, and improving learning units and individual lessons. The selectee's application, on the other hand, stated that she had conducted military training and in-rate training, assigned and supervised individuals in giving training, maintained a training log of supply-division personnel, conducted classroom-style training, and provided instruction through on-the-job demonstration.
The AJ found that Complainant failed to establish a prima face case of discrimination. In that regard, he noted that Complainant expressly stated that he did not have a disability. The AJ also noted that the undisputed evidence established that the Human Resources Specialist was not aware of Complainant's race, color, national origin, religion, or prior EEO activity. In addition, the AJ concluded that Complainant failed to establish a prima facie case of discrimination based on sex and age because he was not qualified for the position. Although the SO was aware of Complainant's prior EEO activity, the AJ concluded that the activity could not have been a factor in the non-selection because SO based her decision solely on the fact that Complainant's name was not on the Certificate of Qualified Candidates.
In addition, the AJ found that Complainant failed to establish that there were disputed facts regarding the Agency's reasons for its actions. The Agency asserted that it did not refer or select Complainant for the Training Instructor position because his application did not establish that he was qualified for the position. The AJ found no evidence that the Agency's explanation was unworthy of credence or a pretext for discrimination. Similarly, the AJ found no evidence that the specialized-experience requirement was not necessary for the position or was imposed for discriminatory reasons. Accordingly, the AJ concluded that the undisputed evidence established that Complainant was not referred for the position because he did not meet the qualification requirement and was not selected for the position because he was not on the Certificate of Qualified Candidates.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the EEO Investigator did not receive "[t]he complete EEO complaint folder" until after the Investigator interviewed Complainant. He states that he subsequently sent the complaint folder to the Investigator, and he submits a copy of his September 17, 2009, letter transmitting the package to the Investigator. In addition, Complainant argues that his "whole complete EEO complaint would have been investigated, heard, and judged" if his claim had remained with the Supervisory Administrative Judge. Complainant alleges that the only documentation that the AJ received was the Agency's motion for summary judgment and asserts that he did not have sufficient time to submit full documentation to the AJ. Complainant submits several hundred pages of documents, including a copy of the Report of Investigation.
The Agency argues that the AJ correctly found that the Agency did not discriminate against Complainant when it did not refer and select him for the Training Instructor position. In that regard, the Agency argues that Complainant was not qualified for the position and that he has not shown the Agency's reasons for its actions to be pretextual.
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 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both an AJ's decision 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
Summary Judgment
We must first determine whether it was appropriate for the AJ to have granted the Agency's motion for summary judgment and 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 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, 322-23 (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); Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (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. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond 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 the instant case, we find that the AJ's decision to issue a decision without a hearing was appropriate. The record has been adequately developed, and Complainant was given notice of the Agency's May 6, 2010, motion for summary judgment. Complainant's assertion that he did not have sufficient time to submit documentation to the AJ is without merit. The January 15, 2010, Acknowledgement and Order informed both parties that they had 90 days to conduct discovery, 15 days after that to file a motion for summary judgment, and 15 days to respond to the motion. Complainant had the same amount of time to submit documentation that the Agency had.
Further, Complainant's assertion that the record was incomplete also is without merit. Exhibit C-9 of the Report of Investigation contains 52 pages of material that Complainant submitted to the EEO Investigator. The investigative file was transmitted to the EEOC on November 12, 2009, and the AJ's decision is replete with citations to the investigative file. Complainant has not identified any document that is missing from the file.
For the reasons discussed below, we find that there were no genuine issues of material fact and that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Accordingly, we find that the AJ properly granted the Agency's motion for summary judgment.
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 generally must initially establish a prima facie case by demonstrating that he 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 Cmty. 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). Complainant can do this by showing that the proffered explanations are unworthy of credence. Burdine, 450 U.S. at 256.
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In this case, viewing the evidence in the light most favorable to Complainant, we find that he has failed to establish the existence of a genuine issue of material fact. We further find that the Agency articulated a legitimate, nondiscriminatory reason for not referring or selecting him for the position of Training Instructor, GS-1712-07. In that regard, we note that the Human Resources Specialist did not place Complainant's name on the Certificate of Qualified Candidates because his application did not reflect the specialized experience necessary for the position. The SO did not select Complainant for the position because his name was not on the Certificate.
Complainant has not shown the articulated reasons to be a pretext for discrimination. He has offered no evidence that his application reflected the necessary experience or that discriminatory animus motivated the Agency's actions. Accordingly, we find that Complainant has not shown that the Agency discriminated against him on the bases of race, color, religion, sex, national origin, age, disability, and reprisal for prior protected activity when it did not refer or select him for the position of Training Instructor, GS-1712-07.
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
June 21, 2013
Date
1 On October 29, 2010, before the Agency issued its final order, Complainant prematurely filed an appeal contesting the decision of the EEOC Administrative Judge. The Agency subsequently issued its final order, and Complainant appealed the final order. Accordingly, the appeal is now ripe for consideration.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120110583
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110583