01A30623_r
09-23-2004
Shanaz Raza, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Shanaz Raza v. Department of Veterans Affairs
01A30623
September 23, 2004
.
Shanaz Raza,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A30623
Agency No. 99-2188
Hearing No. 340-A0-3370X
DECISION
Complainant filed a timely appeal with the Commission from an agency final
order concerning her complaint of unlawful employment discrimination
brought pursuant to 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 record reveals that during the relevant time, complainant was employed
as a GS-12 Computer Specialist, at the agency's Long Beach Medical Center,
and had worked at the agency in various positions since 1966.
On April 16, 1999, complainant filed a formal complaint. Therein,
complainant claimed discrimination on the bases of race ( Pakistani),
national origin (Pakistan), and age (D.O.B. March 30, 1945) concerning
the agency's October 1998 disqualification of her application for the
positions of GS-13 Lead Health Science Officer (Vacancy Announcement
#98-216, herein referred to as LHSO) and GS-12 Health Science Officer
(Vacancy Announcement #98-215, herein referred to as HSO).<1>
Specifically, complainant claimed that the vacancy announcement for
each position required a �Bachelor's degree� in a pertinent field,
and that her application indicated that she earned both Bachelor and
Master degrees in a corresponding pertinent field at universities in
Pakistan, in 1964 and 1966, respectively. Complainant claimed after
receiving written notification from the West Los Angeles personnel office
that her application for the positions was rejected because she lacked
minimum qualifications for both positions, she contacted the responsible
personnel specialist (herein referred to as PS) to determine the reason.
Complainant claimed that PS informed her that she did not satisfy the
educational requirement because her degrees were earned at a foreign
university; that she did not submit a formal evaluation showing her
education to be equivalent to a degree earned at an accredited school
in the United States; and that the latter was an Office of Personnel
Management (OPM) mandate for vacancies having a positive educational
requirement.
Notwithstanding this explanation, complainant claimed that her
disqualification was discriminatory because submission of this equivalency
documentation was not indicated in either vacancy announcement; PS
did not then give her an opportunity to submit this documentation; and
PS did not consider that her education could otherwise be qualifying
because of her prior selections for other agency positions which also
required a Bachelor's degree.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ).
On May 27, 2002, the AJ issued a Notice to the parties proposing to
issue a decision without a hearing, finding that some or all of the
facts were not in genuine dispute. Specifically, the AJ proposed
to find that complainant failed to qualify for either position at
issue because each required a positive education requirement. The AJ
found that complainant applied for a position in 1969, and a medical
technologist position in 1976, requiring at a minimum a Bachelor's
degree, and there was no question about the quality of her education
regarding either. The AJ also found that complainant inquired about
her disqualification, and that PS informed her of the need to submit an
evaluation of her education, pursuant to an OPM mandate. The AJ also
found that this requirement was not included in the vacancy announcements.
The AJ further found that PS and her first line supervisor (S1), working
independently, disqualified complainant because her foreign education
was not evaluated for equivalency. Finally, the AJ found that there
were no comparable employees.
In response, complainant opposed the AJ's proposal to issue a decision
without a hearing. Complainant identified the following issues of
material fact in dispute:
The agency did not require non-Pakistani employee/applicants to submit
credential evaluations for foreign degrees, when degrees were a minimum
requirement for the position;
The agency contacted non-Pakistani applicants for positions, who had
submitted applications which were missing supporting documentation,
such as a credential evaluation and gave them time to obtain items that
were missing; and
The agency obtained personnel folders for employee/applicants for
positions, to determine if those employee/applicants had items in
their personnel folder which might complete their applications (i.e.,
credentials not submitted).
Complainant requested that the AJ allow discovery to further develop
the record regarding these issues. Complainant claimed that she raised
these issues during the investigation, but that they
were not developed, and that discovery at the hearing stage was therefore
necessary.
Complainant argued that 29 C.F.R. � 1614.109(d) gives the parties the
right to discovery, averring
that it is particularly crucial at this juncture if complainant is to
have the opportunity to obtain
evidence to oppose summary judgment. Complainant argued that it is
impossible to determine the facts surrounding these disputed issues by
reviewing the investigative record alone, and requested discovery.
The AJ nevertheless issued a decision without a hearing, finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination on any of the alleged bases. The AJ found that
complainant showed that she was a member of each protected group as
to race, national origin and age, and that the selectee for the LHSO
position was a younger female (race and national origin unknown), and
that no selection was made for the
HSO position. However, the AJ found that complainant failed to establish
that she was qualified for the positions at issue. In particular, the
AJ found that each position had a �positive education requirement,� and
that complainant's education had not been evaluated as being equivalent
to that of a United States accredited institution, so that the agency
could not deem her to be qualified.
The AJ further found that complainant presented no evidence to rebut
the agency's reason, and found that neither PS, nor her first or second
level supervisors, identified as discriminating
officials by complainant, were aware of complainant's age, race, or
national origin, which further belied her claim of discrimination.
Furthermore, the AJ found that complainant failed to set forth any
comparative evidence to demonstrate disparate treatment, and that she
did not present any evidence upon which to infer that her non-selection
was discriminatory. The AJ determined that complainant set forth no
more than bare speculation to support her prima facie case, such that
a decision without a hearing was appropriate.
Finally, the AJ determined that even if complainant had established a
prima facie case, she
presented no evidence that the agency's reason for disqualifying her
applications was a pretext for discrimination, thereby failing to raise
a material factual dispute on this issue.
The agency's final action implemented the AJ's decision.
On appeal, complainant presents genuine issues of material fact raised in
her opposition to summary judgment, and asserts that the AJ improperly
drew legal conclusions against her based on her failure to produce
certain evidence. Complainant argues that the AJ erred in failing to
allow her to engage in discovery prior to issuing a summary judgment
determination, and erred in concluding that complainant was not qualified
for the positions. Complainant argues that by denying her an opportunity
for discovery, the AJ precluded her from proving: (1) the agency had
an evaluation of complainant's Bachelor's degree at the time she applied
for the positions; (2) the agency was aware that complainant's Bachelor's
degree was fully equivalent to a U.S. accredited institution; and (3)
the agency, in other similar situations, had contacted applicants for
employment to solicit evidence of degree evaluations when they had not
been submitted.
Additionally, complainant argues that the AJ erred in finding that she
presented no evidence to refute the agency's evidence. Complainant argues
that this evidence is in the hands of the agency, and that without
discovery, she had no opportunity to obtain it. Furthermore, complainant
argues that the AJ erred in finding that complainant failed to present
comparative evidence. Complainant notes that without the benefit of
discovery, it would be essentially impossible to do so. Additionally,
complainant argues that the AJ erred in finding that the three responsible
agency officials (PS and her first and second level supervisors) did not
know her age, race, or national origin, given the ethnicity of her name,
her education in Pakistan, and the dates of her graduation, all clearly
reflected on her application, and asserts that the AJ erred in failing
to allow discovery on this issue. Complainant requests a hearing.
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.
Based on the above legal standard, the Commission has held that before an
AJ can properly issue a decision without a hearing in the federal sector,
either on his or her own initiative, or after a motion is made by either
party, several criteria must be satisfied:
(1) the AJ must be certain that the investigative record has been
adequately developed;
(2) the AJ must be certain that there are no genuine issues of material
fact;
(3) the AJ must not need to �make� any findings of fact by weighing
conflicting evidence or assessing witness credibility; and
(4) the AJ must ensure that the party opposing the summary judgment
is given:
ample notice of the proposal to issue a decision without a hearing;
a comprehensive statement of the allegedly undisputed material facts;
the opportunity to respond to such a statement; and
the chance to engage in discovery before responding, if necessary.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003). In Petty, the Commission further found that the AJ must enable
the parties to engage in the amount of discovery necessary to properly
respond to any motion for a decision without a hearing, finding that Rule
56 itself precludes summary judgment if the opposing party has not been
given the opportunity to discover information essential to the opposition.
(Citing to Anderson, 477 U.S. at 250.)
In this case, we find that the AJ's issuance of a summary judgment
decision did not satisfy the above referenced criteria, and was not
appropriate in this case. Furthermore, we find that complainant was not
permitted to engage in discovery to obtain evidence, clearly lacking in
the record, which may have been critical to her effort to effectively
oppose the AJ's Notice proposing to issue a decision without a hearing.
In determining that complainant failed to establish a prima facie case of
discrimination on any of her alleged bases, and in her Notice proposing
summary judgment, the AJ found that complainant failed to present
�comparative� evidence. However, in her decision, the AJ acknowledged
that the record lacked evidence as to the race or national origin of the
selectee for the LHSO position. Also, regarding the HSO position,
the AJ noted that no selection had been made as of February 2000,
but does not further address the lack of evidence to explain why this
position was not ultimately filled. This was information known to the
agency, but not easily known to complainant, and was not addressed in
the investigation despite complainant's concerns about it, as raised in
her affidavit. The Commission determines that evidence going to the race
and national origin of the selectee, as well as the agency's failure to
make any selection, is material to establishing a prima face case in a
non-selection case.
Moreover, in further addressing the prima facie case, as well as the
agency's proffered legitimate non-discriminatory reason for its decision,
we find that the AJ relied exclusively on the agency's representations
that complainant was properly disqualified because of her failure to
submit documentation with her application showing that her Bachelor's
degree was equivalent to that from a U.S. accredited university. The AJ
acknowledged that the demonstration of equivalency to a U.S. accredited
university was omitted from the vacancy announcements; however, the
AJ did not further evaluate the agency's determination to automatically
disqualify complainant's application, without recourse, in light of
this omission.<2> The AJ accepted the agency's deviation from normal
practice without permitting complainant to challenge, through discovery,
the agency's proffered explanation and justification. We note that
complainant's identified �material facts� primarily address this issue,
and that she raised these matters during the investigation. However,
little if any development was undertaken.
For example, complainant stated in her affidavit that the agency did not
afford her the opportunity to submit an evaluation of her education after
learning of this requirement, despite the fact that the selection was
still pending. Complainant questioned whether this is agency policy,
or whether she was being discriminated against. Also, complainant
questioned whether the other applicants, including the selectee, fell
within the purview of the OPM rule used to disqualify her; and if so,
whether this requirement was waived up-front for them; or whether there
were other applicants subsequently given the opportunity to submit an
educational evaluation. Complainant also questioned whether the agency
permitted applicants to later submit any type of materials that may
have been missing from their applications rather than automatically
disqualifying them. Additionally, complainant questioned whether the
agency reviewed her personnel file to otherwise verify the equivalency of
her education, or did so for the other applicants, including the selectee,
but not her. As noted by complainant, this information would be maintained
by the agency, and should have been obtained by its investigation of
the complaint, but was not.
We note that in her affidavit, S1 admits that personnel record reviews may
be conducted when qualifying information is omitted from an application,
but that complainant was not afforded this option, either before or
after notice of her disqualification, because her personnel file was
maintained at the Long Beach facility. However, we find that S1 does
not explain why her office could not have simply requested that the
personnel file be transferred for this review, or even request that the
Long Beach office review complainant's file for this information and
send the results to the West Los Angeles office, especially in light of
complainant's communication to PS that her Bachelor's degree had been
previously qualified for positions.
Furthermore, review of the record reflects that the notice sent to
complainant regarding her disqualification (VA Form 4078), in the section
labeled �Action on Application,� sets forth three options, and that the
following option is checked for complainant: �A review of your personnel
folder indicates you do not meet the minimum qualifications for this
position.� However, �personnel folder� is manually crossed out, and
the word �application� is handwritten above it, which may suggest that
the agency deviated from its normal practice in processing complainant's
application.
Although this testimony and evidence does shed some light on the
application processing at the agency, in terms of missing application
materials, we find that it also presents factual discrepancies, to
include possible credibility issues as to S1. Therefore, we find that
clarifying evidence could have been obtained during discovery, that may
have explained these discrepancies and illuminated credibility concerns,
and thereby demonstrated that summary judgment was not appropriate in
this case.
Accordingly, we find that there are genuine issues of material fact as to
the establishment of a prima facie case, as well as the agency's proffered
legitimate non-discriminatory reason for complainant's disqualification.
It was therefore inappropriate to render a summary judgment decision in
this case.
Additionally, we note that the AJ found that �even if� complainant
had established a prima facie case of discrimination, she presented no
evidence that the agency's reason for disqualifying her applications were
a pretext for discrimination. However, we find that complainant was not
given the opportunity to obtain such evidence, during the investigation
or with discovery at the hearing stage. We also note that the AJ
determined that complainant failed to submit any evidence of pretext
or animus toward her protected classes based on a finding that she was
unable to refute the agency's rendition of facts. However, as set forth
by complainant on appeal, we concur that this evidence reposed with
the agency, and without discovery, complainant had no opportunity to
obtain it. Moreover, with respect to a pretext determination, we note
that the AJ's Notice does not include any proposed findings regarding
this issue. Therefore, we find that complainant did not have adequate
notice of the �undisputed material facts� as to pretext. Given the
deficiency of the investigative record, we find that when complainant
was not given the opportunity to engage in discovery, she was deprived
of the opportunity to obtain evidence which might have demonstrated
pretext, thus rendering summary judgment inappropriate.
Finally, we find that by refusing to allow discovery, and simply
accepting the agency's rendition of facts, i.e.,that the responsible
agency officials were not even aware of complainant's age, race, or
national origin, the AJ made an impermissible credibility determination
in finding a lack of pretext or animus. We note that PS, and her
first and second line supervisors, attest that they had no knowledge of
complainant's age, race, or national origin. However, as challenged by
complainant on appeal, the Commission also questions how the educational
information in complainant's application, which was clearly reviewed by
PS and S1, if not the second line
supervisor, <3> showing her high school and college education in Pakistan,
as well as the years of college graduations in the mid-1960's, could
not have created a plausible belief that complainant was over 40 years
old and of Pakistani origin. As such, we concur with complainant that
these affidavits raise a credibility issue. Therefore, we find because
complainant was not allowed to engage in discovery on this issue,
summary judgment was inappropriate, because whether or not PS and S1
knew complainant's age, race, and national origin is a genuine issue of
material fact.
The Commission's regulations at 29 C.F.R. � 1614.109(d) provide to the
parties the right to seek discovery prior to the hearing �and that both
parties are entitled to reasonable development of evidence on matters
relevant to the issues raised in the complaint� (emphasis added).
In enforcing this regulation, the Commission has held that an AJ
must provide the party opposing summary judgment the chance to engage
in discovery, to obtain evidence to prove that there were material
facts in dispute, before responding to a motion for summary judgment.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Department of the Army, EEOC Appeal No. 01A04099 (July
11, 2003).
Prior to the hearing stage, the agencies have sole control of the
development of the record and the evidence included therein. Meanwhile
at the hearing stage, the Commission's regulation provides both parties
with the right to request discovery. Specifically, EEOC Regulation
29 C.F.R. � 1614.109(d) provides that the parties �are entitled to
reasonable development of evidence on matters relevant to the issues
raised in the complaint.�
Therefore, after a careful review of the record, we find that the issuance
of a summary judgment decision in favor of the agency was improper for
the reasons stated herein. The Commission VACATES the agency's final
order and REMANDS the matter 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 appropriate EEOC field
office the 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 notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
September 23, 2004
__________________
Date
1The record reflects that both vacancy
announcements were limited to certain agency employees (Permanent
Employees of VISN 22), and were designated as temporary promotions. Both
positions were located at the agency's West Los Angeles Medical Center.
2In her affidavit, S1 attests that although submission of an equivalency
evaluation for a foreign diploma is an OPM requirement, its omission was
not actually an �error.� Had it been an error, the vacancies would have
to be cancelled, and reissued, which was not done in this case.
3According to the record, it does not appear that the second line
supervisor had any working involvement in the selection process for
either position.