0120092293
07-16-2009
Pamela D. Davis,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092293
Agency No. 2003-0674-2007102947
Hearing No. 450-2008-00348X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 6, 2009 final order concerning her equal
employment opportunity (EEO) complaint claiming 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, a Health Technician, GS-6, at the agency's Compensation and
Pension Unit, VA Medical Center in Temple, Texas, alleged that the agency
discriminated against her on the bases of race (African-American), sex
(female), and age (over 40) when:
on April 27, 2007, she was reassigned to the Specialty Clinic.
Following the investigation into her complaint, complainant requested
a hearing before an EEOC Administrative Judge (AJ). On February 18,
2009,. the AJ issued a decision by summary judgment in favor of the
agency. The agency fully implemented the AJ's decision in its final
order.
The AJ found that complainant did not establish a prima facie case
of race, sex and age discrimination. The AJ further found that even
assuming complainant established a prima facie case of race, sex and
age discrimination, the agency articulated legitimate, nondiscriminatory
reasons for its actions which complainant failed to show were a pretext.
The AJ noted that the Chief of Compensation and Pension Unit (C1),
believed there had been significant difficulties because complainant and
other Health Technicians worked in the Compensation and Pension Unit,
but actually reported to parties outside that clinic. C1 recommended
that other personnel in the Compensation and Pension clinic could
handle the duties of the Health Technicians. Specifically, C1 stated
". . . there was a significant difficulty over a period of time in terms
of supervision, and a lot of it had to do with the fact that they were
in Nursing Service and we're, myself, as the Clinical Chief, and then
we have an Administrative Supervisor who kind of administratively does
the support of. . . running the clinic, and there were performance and
behavioral and team, lack of team spirit problems that we tried to work
with the Nursing Service...And it was not a quick decision or something
that it was taken lightly. It was something that I spent quite a bit
of time trying to work through in the usual - - in the organizational
structure that was in place. To be honest, it's really strange to
have Nursing Service personnel supposedly on our team but they're under
someone else's supervision and under the Nursing Service's supervision
and not under our supervision."
Further, the AJ noted that the Chief of Medicine Service accepted the
recommendation and on April 27, 2007, complainant and other nursing
service employees were reassigned out of the Compensation and Pension
Unit. Moreover, the AJ noted that the reassignment notwithstanding,
complainant's position description, supervision and patient duties
essentially remained the same.
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, 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.
Complainant has offered no persuasive arguments on appeal regarding the
AJ's decision to issue a decision without a hearing, or regarding the
AJ's findings on the merits. Therefore, after a review of the record
in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final order, because the Administrative
Judge's issuance of a decision without a hearing was appropriate and a
preponderance of the record evidence does not establish that unlawful
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
July 16, 2009
__________________
Date
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0120092293
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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