Myishia Spears, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 24, 2007
0120070818 (E.E.O.C. May. 24, 2007)

0120070818

05-24-2007

Myishia Spears, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Myishia Spears,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120070818

Hearing No. 330-2005-00183X

Agency No. 200305802004103527

DECISION

On November 22, 2006, complainant filed an appeal from the agency's

October 23, 2006, 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. The appeal is deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final order.

At the time of events giving rise to this complaint, complainant applied

for a position as a police officer, at the Veterans Affairs Medical Center

(VAMC) in Houston, Texas. On August 26, 2004, complainant filed an EEO

complaint alleging that she was discriminated against on the bases of race

(African-American) and her sex, under Title VII of the Civil Rights Act

of 1964 when:

1. on May 28, 2004 and June 4, 2004, she was required to complete a

psychological evaluation;

2. on May 28, 2004 and June 4, 2004, she was disqualified from

the position of VA Police Officer as a result of the psychological

evaluations; and

3. on March 6, 2005, she was demoted to a Security Assistant, step-5,

when it was determined that she was not qualified to perform her duties

as a police officer. 1

With regard to claim (3), complainant also alleged that she was

subjected to retaliation for prior EEO activity. At the conclusion of

the investigation, complainant was provided with a copy of the report of

investigation and notice of her right to request a hearing before an EEOC

Administrative Judge (AJ). Complainant timely requested a hearing and the

AJ held a hearing on September 8, 2006 and issued a decision finding no

discrimination or retaliation. The agency subsequently issued a final

order adopting the AJ's finding that complainant failed to prove that

she was subjected to discrimination as alleged.

In response to the complainant's appeal, the agency argues that

complainant's appeal is untimely and should be dismissed. Further,

the agency argues that its final decision adopting the AJ's finding

of no discrimination should be upheld. We note that with regard

to the agency's contention that complainant's appeal is untimely,

complainant's appeal is, in fact, timely. Under EEOC regulations,

an appeal must be filed within 30 days of receipt of the final action.

29 C.F.R. � 1614.402(a). The record reflects that complainant filed her

appeal of the agency's October 23, 2006 final agency decision (FAD) by

Notice of Appeal postmarked November 22, 2006. Complainant states that

she received the FAD on October 30, 2006. In order for complainant's

appeal to be timely, complainant must have filed by November 30, 2006.

Since the postmark on complainant's appeal was November 22, 2006, we

find that complainant timely filed her appeal. Therefore, we decline

to dismiss complainant's appeal as untimely.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,

1999).2

The AJ found the following facts: Complainant testified that during the

week of May 11, 2004, she was notified by telephone by a Human Resource

Assistant (HRA) in Houston that she had been selected for the police

officer's position and had a tentative reporting date of May 30, 2005.

On May 24, 2004, complainant was sent a letter informing her in writing

that her appointment was contingent upon her successful completion of

the pre-employment physical examination which included a psychological

evaluation and an initial background check. HRA also informed complainant

that she would have to have an annual physical and psychological done

before she could transfer to Houston. On May 19, 2004, a Clinical

Psychologist completed a Police Services Psychological Reevaluation

of complainant. The Clinical Psychologist concluded that complainant

continued "to meet the mental health standard for certification as a law

enforcement officer." Complainant completed her physical examination in

Memphis, Tennessee on May 21, 2005. When the VAMC received complainant's

health records and the Clinical Psychologist's evaluation, it was reviewed

by the Acting Employee Health Physician and Chief of Staff (AEHP).

The AEHP determined that complainant's health records revealed that

she had been prescribed Fluoxetine while she was a contract Security

Operation's Officer in Las Vegas. The AEHP also determined that during

the course of her career with the agency, complainant had not been given a

standardized psychological test but only annual psychological evaluations.

As a result, the AEHP advised the human resources department that

complainant could not be approved to carry a firearm at the VAMC until

she obtained the necessary psychological testing. It was the VAMC's

policy to review all health evaluations of all employees transferring

from other VA facilities. On May 28, 2004, complainant reported the VAMC

Human Resource Office where she met with a Personnel Management Specialist

(PMS) who informed her that she had not taken the proper psychological

evaluation to carry a firearm when she began working for the agency in

Las Vegas and Memphis. On the same date, complainant was scheduled to

take a psychological evaluation administered by a psychologist (P1)

to determine if complainant was psychologically fit and suitable to

work as a VA police officer at the VAMC. The evaluation consisted of a

clinical interview; the MMPI-2 Law Enforcement Interpretive Report, the

California Psychological Inventory Police and Public Safety Selection

Report, and information from prior psychological evaluations obtained

from complainant's health records.

Because of complainant's responses on the MMPI-2, an interpretation

of the test could not be done. P1 notified AEHP that complainant did

not pass the test. AEHP instructed P1 to administer the MMPI-2 to

complainant a second time to allow her an opportunity to pass the test.

P1 administered the second test on June 4, 2004. Complainant did not

pass the test the second time; therefore, P1 concluded in her evaluation

report that complainant was not psychologically fit or suitable to work

as a VA police officer and carry a firearm. Since complainant could not

carry a firearm as a police officer, she was reassigned to the position

of Dispatcher, GS-5 Step 5 effective March 5, 2005.

The AJ found that with regard to claims (1) and (2), complainant failed

to establish a prime facie case of race or sex discrimination because

she failed to point to similarly situated individuals outside of her

protected classes who were treated differently. With regard to claim (3),

the AJ similarly found that complainant failed to establish a prima facie

case of race or sex discrimination since she failed to establish that

individuals outside of her protected classes were treated differently.

With regard to complainant's claim of retaliation, the AJ found that

complainant failed to establish a prima facie case since she did not

establish that she participated in prior EEO activity.

The AJ further found that even assuming that complainant established a

prima facie case of race and sex discrimination and retaliation, she

failed to establish that the agency's reasons for its actions were a

pretext for discrimination. Specifically, the AJ found that the agency

articulated a legitimate non-discriminatory reason for its actions; namely

with regard to claim (1), complainant needed to take the psychological

evaluation since she was previously prescribed Fluoxetine and had not been

previously been given a thorough psychological evaluation in Las Vegas

or Memphis. Further, the AJ found that the agency determined with regard

to claim (2), since complainant failed to pass the requisite psychological

assessment to carry a firearm, she was not able to fill the position of

a police officer. Finally, the AJ found that with regard to claim (3),

the agency demoted complainant since it determined that she could not

perform the duties of a Police Officer and could not continue to hold

her in an unclassified position and pay her at the GS-6 grade level.

The AJ found that complainant failed to establish that the proffered

reasons were a pretext for discrimination.

We find that the AJ's finding of no discrimination is supported by

substantial evidence in the record. In so finding, we note that

in order 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). She must generally 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). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

We note that the AJ's finding that the agency articulated legitimate

reasons for its actions is based on substantial evidence in the record.

Further, we find that the AJ's determination that complainant failed to

establish that those proffered reasons were a pretext for discrimination

is supported by substantial evidence in the record. Specifically,

the record reflects that complainant argued that she initially felt

that the Chief of Police (Chief), who was also the selecting official,

an African American male, did not want to initially hire her because

she heard that he stated that there were too many women in the service

and that he provided more extra duty assignments to females than male

officers. Complainant also testified that the Chief was "standoffish"

and hesitated to hire her. However, we find that these allegations alone

are not sufficient to establish that the agency's proffered reasons for

its actions were a pretext for race or sex discrimination. As such,

we find that complainant failed to establish that she was discriminated

against because of her race or sex. Further, complainant argues that

with regard to claim (3), the agency retaliated against her for failing

to withdraw her EEO complaint, however, we find that nothing in the record

corroborates complainant's allegation that this is the case. Furthermore,

there is nothing in the record to corroborate complainant's allegation

that she was discriminated or retaliated as alleged. Therefore, we

find that the AJ's conclusion that complainant failed to establish that

she was unlawfully discriminated or retaliated against is supported by

substantial evidence in the record.

Based on a thorough review of the record and the contentions on

appeal, including those not specifically addressed herein, we find that

complainant failed to establish that she was discriminated or retaliated

against as she alleged.

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

______5/24/07_____________

Date

1 We note that complainant did not claim that she was discriminated

against under Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq.

2 We note that one witness was interviewed during the course of the

hearing via telephone. Generally, the Commission has held that an entire

hearing should not be conducted by telephone in the absence of exigent

circumstances, unless at the joint request of the parties and provided

specified conditions have been met. Louthen v. United States Postal

Service, EEOC Appeal No. 01A44521 (May 17, 2006). We note in Louthen

that "it has long been common practice for AJs to conduct pre-hearing

matters by telephone, and to take testimony by telephone where a

witness would otherwise be unavailable to testify. See, e.g., Mozee

and Bailey v. United States Postal Service, EEOC Appeals Nos. 01A34265

and 01A34266 (January 10, 2005) (prehearing conducted by telephone);

Freeman v. United States Postal Service, EEOC Appeal No. 01924204

(September 30, 1993) (witness testimony taken by telephone); Davis

v. Department of Transportation, EEOC Appeal No. 01883565 (January 18,

1989), req. to reopen. den., EEOC Request No. 05890471 (November 9, 1989)

(witness testimony taken by telephone)." Id. In the instant hearing,

which was held prior to the Commission's decision in Louthen, we find

that the AJ did not abuse his discretion by interviewing one witness via

telephone since no material credibility determinations were made with

regard to that witness. Sotomayor v. Department of Army, EEOC Appeal

No. 01A43440 (May 17, 2006).

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0120070818

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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