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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0120070818
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