07a50067
09-13-2005
Vanette Edwards, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Vanette Edwards v. Department of Veterans Affairs
07A50067
September 13, 2005
.
Vanette Edwards,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07A50067
Agency No. 200K-0695-2003103616
Hearing No. 260-04-00032X
DECISION
Following its April 27, 2005 final order, the agency filed an appeal. On
appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the basis of her race. The agency also requests
that the Commission affirm its rejection of the AJ's order to provide
relief as described herein. For the following reasons, the Commission
REVERSES the agency's final order.
Complainant, a Dental Assistant employed at the agency's Milwaukee,
Wisconsin facility, filed a formal EEO complaint with the agency on
August 26, 2003, alleging that the agency discriminated against her on
the bases of race (African-American), sex (female), and reprisal for
prior EEO activity when:
On July 15, 2003, complainant was denied an interview for the position
of Accounting Technician, GS-6.<1>
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ found that complainant established a prima
facie case of race discrimination when she was denied the opportunity to
interview for the position of Accounting Technician, GS-6. The AJ found
that the agency articulated legitimate, nondiscriminatory reasons for its
actions by stating that the agency's human resources personnel determined
that complainant's application failed to show that she had the requisite
one year of specialized experience necessary to qualify for the position.
The AJ noted the evidence showed that the agency has not hired any African
American applicants into the position of Accounting Technician in the
last ten years, nor does the record show that the agency has any African
Americans currently employed in the Accounting Technician position.
The AJ concluded that complainant established that more likely than not,
the reasons provided by the agency were a pretext for discrimination.
In reaching this conclusion, the AJ found that of the four rating
factors that the agency's human resources personnel considered in
reaching its determination, complainant's application provided sufficient
information for the agency to conclude that complainant had satisfied
all four factors, enough to be granted an interview and considered for
the position. Specifically, the AJ found that although complainant did
not specify the percentage of time she devoted to activities satisfying
the first rating factor, neither did either of the applications submitted
by the two candidates selected for an interview. Similarly, the AJ found
that complainant's description of her knowledge of the IFCAP system should
have been enough to satisfy the fourth rating factor, given that one of
the interviewed candidates related similar knowledge on his application.
Accordingly, the AJ found that complainant was qualified for an interview
for the position of Accounting Technician.
The AJ found no reprisal because complainant failed to establish
that any of the agency responsible officials were aware of her prior
EEO activity. The Commission observes that one of the candidates
selected for an interview was also female. Accordingly, we deem the
AJ to have determined that no discrimination occurred on the basis of
either reprisal or sex and that neither party contests the AJ's ruling
finding no reprisal or sex discrimination.
The agency's final order rejected the AJ's decision regarding race
discrimination. Therefore, this decision shall only address the finding
of race discrimination by the AJ. On appeal, the agency argues that the
AJ erred by not determining whether complainant was actually qualified
for the position of Accounting Technician at the GS-6 level.
On appeal, complainant argues that complainant does not contend that she
was more qualified for the position than the candidates selected for an
interview. Rather, complainant states that the agency failed to assess
her application in the same manner as it assessed the applications of
the individuals selected for an interview. Had it done so, complainant
argues, complainant would have been granted an interview. Complainant
does not challenge the remedies provided by the AJ.
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.
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws. We find the AJ correctly determined
that given the agency's assessment of the applications of the candidates
selected for an interview, complainant should also have been certified by
the agency for an interview. The Commission, however, modifies the relief
granted by the AJ. First, we agree with the AJ that complainant should
be granted interview opportunities for future Accounting Technician,
GS-6 vacancies. The Commission adds the time limit of two years to this
interview remedy. The Commission disagrees with the AJ that complainant
should be provided training to allow complainant to successfully perform
the duties of an Accounting Technician, GS-6. The agency was not found
to have discriminatorily denied complainant training and such relief
is beyond make whole relief. Furthermore, we add the remedies of: (1)
EEO training for the agency officials responsible for the discrimination;
and (2) the requirement that the agency consider disciplining the agency
officials responsible for the discrimination.
Therefore, we REVERSE the agency's final order and REMAND the matter to
the agency to take corrective action in accordance with this decision
and the Order set forth herein.
ORDER
The agency shall take the following remedial action:
Within 30 days of the date this decision becomes final, the agency shall
notify complainant in writing that the agency shall give complainant an
interview for any vacant GS-6 Accounting Technician position for which
she applies, for a period of two years from the date this decision
becomes final.
Within 60 days of the date this decision becomes final, the agency shall
provide EEO training to the agency officials responsible for the decision
not to certify complainant for an interview at the VA Medical Center,
Milwaukee, Wisconsin.
Within 60 days of the date this decision becomes final, the agency
shall consider taking disciplinary action against, the agency officials
responsible for the decision not to certify complainant for an interview
at the VA Medical Center, Milwaukee, Wisconsin. If the Agency decides
to take disciplinary action, it shall identify the action taken for
the record. If the Agency decides not to take disciplinary action,
it shall set forth, in the record, the reason(s) for its decision not
to impose discipline.
Within 30 days of the date this decision becomes final, the Agency
shall post the attached NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, (after being signed by the Agency's
duly authorized representative) in conspicuous places, including all
places where notices to employees are customarily posted, as specified
below.
The agency shall send evidence that they have complied with provisions
1 - 4 of this Order to the Compliance Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Milwaukee, Wisconsin facility copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 13, 2005
__________________
Date
NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ____________ which found that
a violation of Title VII of the Civil Rights At of 1964 (Title VII),
as amended, 42 U.S.C. � 2000(e) et seq., has occurred at the agency's
Veterans Affairs Medical Center (VAMC) facility, in Milwaukee, Wisconsin.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have discriminated against complainant on
the basis of race. The facility was ordered to provide interviews for
vacancies, EEO training for agency personnel, attorneys fees and costs.
This facility will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all federal equal employment opportunity laws and will
not retaliate against employees who file EEO complaints.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, federal equal employment
opportunity law.
Name and Title
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1Complainant's complaint also alleged discrimination regarding the
agency's determination that she was not qualified for three additional
positions. Complainant was notified that those three claims were
dismissed by the agency for untimely EEO Counselor contact. We find
nothing in the record to indicate complainant sought review of the
agency's dismissal at the time of the hearing on complainant's complaint
and complainant does not contest the dismissal of those claims on appeal.