Yolanda Villegas, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 2, 2007
0120055220 (E.E.O.C. Feb. 2, 2007)

0120055220

02-02-2007

Yolanda Villegas, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Yolanda Villegas,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01200552201

Hearing No. 360-2005-00048x

Agency No. 2003-0756-2004102

DECISION

JURISDICTION

On July 27, 2005, complainant filed an appeal from the agency's July

12, 2005, 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.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Program Assistant at El Paso Health Care Center in El Paso, Texas.

The undisputed facts in this matter are the following. Complainant

received a promotion from a Program Support Clerk position to a Program

Support Assistant position in August 2000. Complainant's first-line

supervisor (S1) classified her new post as a GS-303-07 pursuant to

the COHO software classification system.2 The Chief of the Human

Resource Management Service (S2) changed complainant's classification

to a GS-303-06. Sometime in late 2003, complainant requested a desk

audit which an HR Specialist conducted and classified as a GS-301-07.

However, S2 again changed the classification to a GS-303-06. As a

result of S2's action, complainant filed an appeal of the classification

on April 28, 2004. On May 4, 2004, complainant met with S1, the HR

Specialist and S2 to discuss the matter, but no resolution was reached.

S2 told complainant that she could file an appeal with the VA Central

Office or the Office of Personnel Management. A few months later,

S2 approved the GS-7 classification after additional duties were added

to the position description. See Complainant's Response to Agency's

Mot. To Dismiss at 1-2; Agency's Mot. To Dismiss at 1-2.

At the time of the incidents, complainant was President of the AFGE

Local 3922 chapter. According to her statement, she has had several

contentious encounters with S2 and other management staff while carrying

out her representational duties. Complainant has a long history as a

union officer: first as a steward, then as the Executive VP, and, at

the time of the events at issue, as the President. See Formal Complaint.

On June 15, 2004, complainant filed an EEO complaint alleging that she was

discriminated against on the bases of race (Caucasian), national origin

(Hispanic), and in reprisal for prior protected EEO activity (being the

president of the local union) when she was denied a promotion by virtue

of the refusal to reclassify her position on May 4, 2004.3

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. The AJ assigned to the case issued a decision

without a hearing upon a March 28, 2005 agency motion to which complainant

objected.4 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.

FINAL AGENCY ACTION

The AJ found that the evidence does not support complainant's

discrimination claim. According to the AJ, management presented a

legitimate, non-discriminatory reason for its action. Complainant's new

position was unlike any other at the agency, and S2 firmly believed

that the specialist's position report was inconsistent with OPM

classification guidance and standards. In the AJ's view, complainant

had not demonstrated that S2's reason was pretextual. She provided

no evidence that S2 was wrong to believe the position deserved a lower

classification under OPM standards. The AJ also rejected complainant's

allegation that S2 intended to harm and cause complainant loss of income.

Referring to complainant's example of how S2 denied her workers'

compensation claim arguing that the injury had occurred after regular

work hours, the AJ stated that it is part of a manager's job to question

an employee's entitlement to workers' compensation when an injury did

no occur during regular duty hours.5

CONTENTIONS ON APPEAL

Complainant insists that the agency subjected her to an adverse employment

action because it deprived her of a 301 series job classification

with promotion potential, placing her instead in a 303 series with no

promotion potential. Complainant further insists that the results

from the Human Resources Specialist's desk supports the contentions

of complainant and S1 that complainant belongs in the 301 series, not

the 303 series. She states that S2's actions "tread on discrimination,

harmful procedural error, due process, and manifest complete disregard

for Position Classification Standards." Id. at 5-6. She requests that

the decisions below be vacated.

In its statement in opposition to the appeal, the agency argues that

after the desk audit and position upgrade, complainant accepted a newly

upgraded GS-7 position. She "did not object to the classification series

of that position until well after she accepted the upgraded position."

Letter from agency to the Office of Federal Operations of Oct. 17,

2005. The agency further argues that complainant did not show that

the classification series used to upgrade her position was incorrect

or used for the purpose of discriminating against her. Consequently,

the agency requests that we affirm its final order. See id.

STANDARD OF REVIEW

In rendering this appellate decision we must scrutinize the AJ's legal

and factual conclusions, and the agency's final order adopting them,

de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an

appeal from an agency's final action shall be based on a de novo review

. . ."); EEOC Management Directive 110, Chapter 9, � VI.B. (Nov. 9, 1999)

(providing that an administrative judge's "decision to issue a decision

without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed

de novo"). This essentially means that we should look at this case

with fresh eyes. In other words, we are free to accept (if accurate)

or reject (if erroneous) the AJ's, and agency's, factual conclusions and

legal analysis - including on the ultimate fact of whether intentional

discrimination occurred, and on the legal issue of whether any federal

employment discrimination statute was violated. See id. at Chapter 9,

� VI.A. (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").

ANALYSIS AND FINDINGS

Before discussing the merits of the case, we must first determine whether

it was appropriate for the AJ to have issued a decision without a hearing

on this record. 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. See 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. See 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.

See 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. See 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. See 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, issuing

a decision without holding a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding a hearing only upon a determination that the

record has been adequately developed for summary disposition. See Petty

v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Finally,

an AJ should not rule in favor of one party without holding a hearing

unless he or she ensures that the party opposing the ruling is given

(1) ample notice of the proposal to issue a decision without a hearing,

(2) a comprehensive statement of the allegedly undisputed material facts,

(3) the opportunity to respond to such a statement, and (4) the chance

to engage in discovery before responding, if necessary. See id.

Lastly, the AJ must believe the evidence of the non-moving party and draw

all justifiable inferences in his favor. See Anderson, 477 U.S. at 255.

If, however, the non-moving party's evidence is "merely colorable" or "not

significantly probative," summary judgment may be granted. Id. at 249-50.

To defeat a decision without a hearing, complainant must have more than

"a scintilla of evidence to support his claims." See Freedmand v. MCI

Telecommunications Corp. 255 F.3d 840, 845 (D.C. 2001).

Having reviewed the record and the AJ's decision, we agree that there are

no material facts in dispute and that the claim was ripe for a decision

without a hearing. The AJ did not make any impermissible credibility

determinations or weigh the evidence to arrive at her conclusions.

Rather than having to find facts, we agree with the AJ that the record

was adequately developed for summary disposition. Moreover, we find

that the AJ complied with the dictates of Perry v. Dep't of Defense.

The AJ gave complainant ample notice of the proposed decision and a

comprehensive statement of the undisputed material facts. She further

gave complainant the opportunity to respond and complainant did so with

an opposition to a decision with a hearing statement.

Turning now to the merits of the case, we note that 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. See Furnco Constr. 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. 6 See 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. See Texas Dep't 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. See Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks,

509 U.S. 502, 519 (1993).

To begin we note that it is not entirely clear whether complainant

established a prima facie case of race, national origin, or reprisal

discrimination. To find such a prima facie case, we pay particular

attention to whether the same management officials afforded more

favorable, or different, treatment to an employee outside of complainant's

protected groups under similar circumstances. Although there is ample

evidence showing that S2 had never before reversed the classification

decision of a Human Resource Specialist upon a desk audit (see Affs. B-2,

B-3 and B4), there is also evidence indicating that complainant's new

position was "unique," and complainant herself was unable to compare

her position to others (Aff. B-1). This implies that not all relevant

aspects of complainant's employment are identical or nearly identical to

those of any possible comparative employees. See O'Neal v. U.S.P.S.,

EEOC Request No. 05910490 (July 23, 1991). Similarly, although there

is a stronger inference of a prima facie retaliation case, there is

insufficient information in the record to allow us to evaluate the

temporal proximity between the alleged adverse action and complainant's

protected activities and determine whether a nexus exists.

Nevertheless, assuming complainant has established a prima facie case

of discrimination, we find that the agency articulated a legitimate,

non-discriminatory reason that satisfies its burden under McDonnell

Douglas. In finding so, we remind complainant that the agency's burden in

this regard is merely one of production of evidence, not of persuasion.

Complainant is the one who carries the burden of proof at all times in a

discrimination claim. For the agency's reason to be legally sufficient

under the McDonnell Douglas test, it must only be "a specific, clear,

and individualized explanation for the treatment accorded complainant."

Miller v. United States Postal Serv., EEOC Appeal No. 01A55387 (June

9, 2006); see also Burdine, 450 U.S. at 253. Here, S2 explained

that she believed complainant's job classification should have been a

GS-6 because, based on her review and knowledge as Chief of the Human

Resource Management Service, the position description did not meet OPM

Classification Standards of a GS-7.7 We find this to be a specific,

clear and individualized explanation for S2's action that is sufficient

to meet our standard under McDonnell Douglas.

Next, we turn to whether complainant satisfied her burden of disproving

the agency's reason with evidence of pretext. We find that she has

not because she has not provided any evidence showing that management's

actions were motivated by discriminatory animus. Complainant implies that

because she is Hispanic and involved in union activities, and because

S2 had never doggedly changed an employee's classification before,

S2's actions were discriminatory. See Complainant's Appeal at 5;

Complainant's Opposition to Agency's Motion to Dismiss at 3. S1 also

testifies that she too believes S2's actions are discriminatory because

there was simply "no other logical explanation for [S2's] behavior"

and because she believed S2 had "biased feelings" toward complainant,

although she could not directly attribute that bias to complainant's race,

national origin or protected activities. Aff. B-4.

These statements of belief, however, are insufficient to meet

complainant's burden under McDonnell Douglas because our law requires

that complainant prove by a preponderance of the evidence that the

agency's proffered explanation is a pretext for discrimination.

See Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

Pretext can be demonstrated by "showing such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the [Agency's]

proffered legitimate reasons for its action that a reasonable fact finder

could rationally find them unworthy of credence." Dalesandro v. United

States Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (citing

Morgan v. Hilti, Inc., 108 F3d 1319, 1323 (10th Cir. 1997)). In cases

similar to this, where complainant's arguments are speculative in nature,

we have concluded that mere conjecture that the agency's explanation

is a pretext for intentional discrimination is an insufficient basis

to overturn a decision without a hearing. See, e.g., George v. United

States Postal Serv., EEOC Appeal No. 01A31214 (July 28, 2003). Therefore,

without evidence that discrimination was the real reason motivating S2's

actions, we cannot find for complainant.

CONCLUSION

In sum, having reviewed the record and considered the arguments on appeal,

we find no error in the AJ's issuance of a decision without a hearing.

Complainant has failed to prove her claims. Therefore, we affirm the

agency's final order.

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

February 2, 2007

__________________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

2 The agency used the COHO software in 2000 and 2001. Through this

software, supervisors were authorized to write and classify the work

performed by their employees based on the OPM Standards programmed into

the software. Supervisors would review choices of work descriptions at

different levels for each factor and select the level that they determined

was comparable with the work performed in a particular position.

The software would then generate a grade-level determination for the

employee that the supervisor would certify. The Human Resources office

oversaw all the classifications and reviewed all supervisor actions to

ensure conformance with OPM classification requirements.

3 Complainant also alleged age discrimination in her Formal Complaint,

but withdrew the claim during the pre-hearing conference.

4 In her statement on appeal, complainant argues that at a prehearing

conference the AJ had dismissed the agency's Motion to Dismiss as

untimely, but during a subsequent May 24, 2005 telephone conference,

the AJ failed to recall the dismissal. The AJ then ordered the agency

to file a Supplemental Motion to Dismiss, which it filed on May 26,

2005 and which the AJ granted. In her statement on appeal, complainant

argues that the "resurrection of the agency's Motion to Dismiss after its

dismissal has tainted the instant case and has deprived the complainant of

a hearing her rightly deserved." Complainant's Appeal at 4. We disagree.

An AJ is afforded broad discretion in the conduct of the hearing and

related proceedings. See 29 C.F.R. � 1614.109.

5 We note that complainant did not raise this loss of income issue

on appeal. Therefore, we do not address it in our discussion.

6 A complainant may establish a prima facie case of reprisal by showing

that: (1) she engaged in protected activity; (2) the agency was aware of

the protected activity; (3) subsequently, she was subjected to adverse

treatment by the agency; and (4) a nexus exists between the protected

activity and the adverse treatment. See McDonnell Douglas, 411 U.S. at

802; Hochstadt v. Worcester Found. for Exper. Biol., Inc. 425 F. Supp. 318

(D. Mass. 1976), aff'd. 545 F.2d 222 (1st Cir. 1976) (applying McDonnell

Douglas to claims of reprisal); Coffman v. Dep't of Veteran Affairs, EEOC

Request No. 05960473 (Nov. 20, 1997). The nexus may be shown by evidence

that the adverse treatment followed the protected activity within such a

period of time and in such a manner that a reprisal motive is inferred.

See Clay v. Dep't of Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).

7 In her affidavit, S2 stated that, "In [her] judgment, the

position report submitted by the specialist was inconsistent with

OPM classification guidance and with standards that should have been

looked at to classify this position. The position report documentation

did not support the GS-0301 series or the higher grade. Factor Level

determinations used in making the report were not consistent with OPM

guidelines and previous classification action." Aff. B-2.

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0120055220

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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