0120081372
08-28-2009
Sylvia A. Bates, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sylvia A. Bates,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081372
Agency No. 200H-0595-2007-100781
DECISION
On January 28, 2008, complainant filed an appeal from the agency's
December 19, 2007 final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 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 MODIFIES the agency's final decision.
ISSUES PRESENTED
1. Whether the agency properly dismissed complainant's claim that
the agency discriminated against her on the basis of disability when
it informed him that the Lebanon, Pennsylvania Hospital Toastmasters
International Club would have to get approval regarding dues.
2. Whether the agency properly concluded that complainant was not
subjected to disability discrimination when it failed to select her for
the position of Visual Information Specialist, GS-7/9.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a secretary, GS-6, at the agency's Extended Care and Rehabilitation
Service of facility in Lebanon, Pennsylvania Veterans Affairs (VA)
Medical Center.
On March 14, 2007, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of disability when:
1. On November 15, 2006, the agency informed complainant that she was
not selected for the position of Visual Information Specialist, GS-7/9,
as announced under vacancy announcement no. MP-06-77; and,
2. On February 28, 2007, the agency informed complainant that the Lebanon
VA Hospital Toastmasters International Club would have to obtain approval
regarding dues.
In a letter dated April 2, 2007, the agency notified complainant
that it accepted claim 1 for investigation but dismissed claim 2 on
the basis that it failed to state a claim. At the conclusion of the
investigation of claim 1, 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 requested a final
decision on October 1, 2007. In its final decision, the agency found that
complainant was not subjected to discrimination as alleged because she
did not establish that she is an individual with a disability or prove
that the agency's articulated non-discriminatory reasons were pretextual.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency improperly found no
discrimination and submits voluminous medical records in support of her
claim that she is an individual with a disability. The agency requests
that we affirm its final decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
As an initial matter, we note that the agency dismissed claim 2 on the
basis that this matter failed to state a claim. The regulation set forth
at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. An agency shall
accept a complaint from any aggrieved employee or applicant for employment
who believes that he or she has been discriminated against by that agency
because of race, color, religion, sex, national origin, age or disabling
condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal
sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In this case, complainant alleged that she was discriminated against when
her supervisor suggested that she was "out of order" for bringing the
matter of local Toastmasters dues to a vote before it was presented to
the Medical Center Education staff. Complainant has not shown that she
was harmed with respect to the terms, conditions, or privileges of his
employment by the agency's alleged actions. Thus, we find that the agency
properly dismissed claim 2 on the basis that it failed to state a claim.
With respect to claim 1, in order 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 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 804 n. 14. The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community 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,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993).
In this case, the Commission finds that the record is inadequately
developed for a determination of the merits of claim 1. The Commission's
regulations and EEOC Management Directive for 29 C.F.R. Part 1614
(November 9, 1999) (MD-110), require agencies to develop an impartial and
complete factual record. See 29 C.F.R. � 1614.108(b). An appropriate
factual record "is one that allows a reasonable fact finder to draw
conclusions as to whether discrimination occurred." MD-110, Chapter 6,
� VI.D. Here, the final agency decision concluded that complainant
failed to persuasively rebut the agency's explanation that it did not
choose complainant for the position because the selectee was better
qualified and received higher ratings from the interview panel.
However, relevant evidence that would support or rebut the agency's
explanation was not included in the record despite being requested by
the investigator. In particular, the record does not contain copies
of candidates' applications, the vacancy announcement, or the position
description for the Visual Information Specialist position. Moreover,
although there were four officials on the interview panel, the agency
only provided a set of interview notes from an unknown source. Therefore,
we are unable to determine whether complainant was more qualified for the
Visual Information Specialist position than the selectee. See Williams
v. Department of Education, EEOC Request No. 05970561 (August 6, 1998)
(pretext may be demonstrated in a nonselection case by showing that
a complainant's qualifications are observably superior to those of
the selectee). Accordingly, we remand claim 1 for a supplemental
investigation. See Thomas Kirkendoll v. Tennessee Valley Authority,
Appeal No. 0120083064 (October 20, 2008) (Commission ordered supplemental
investigation in non-selection case where record did not contain copies
of the submitted applications, the vacancy announcement, or a complete
copy of complainant's Personal History Record).
CONCLUSION
Accordingly, the Commission affirms the agency's dismissal of claim
2. The Commission VACATES the agency's final decision finding no
discrimination with respect to claim 1, and REMANDS claim 1 to the agency
to conduct a supplemental investigation pursuant to the ORDER below.
ORDER (E0408)
The agency is ordered to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall ensure that the investigator obtain evidence
consistent with this opinion which may be relevant in determining the
merits of claim 1, including, but not limited to, the vacancy announcement
for the Visual Information Specialist position; application materials
submitted by complainant, the selectee and other applicants for the Visual
Information Specialist position; the position description for the Visual
Information Specialist position; all notes and documentation from the
interview panelists; and, any other documentation from the selection
process not already in the record.
2. The agency shall afford complainant the opportunity to introduce any
new evidence into the record pertinent to claim 1.
3. The agency shall ensure that the investigator completes a
supplemental investigation within sixty (60) calendar days of the date
this decision becomes final. The agency shall issue complainant a copy
of the new Report of Investigation, including the matters included in
the supplemental investigation. The agency shall notify complainant
that within thirty (30) calendar days of receipt of the Report of
Investigation, he has the right to request a hearing and decision from
an EEOC Administrative Judge or may request an immediate final decision
pursuant to 29 C.F.R. � 1614.110.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
08/28/09
__________
Date
2
0120081372
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120081372