0120150268
04-24-2017
Callie B.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Callie B.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150268
Hearing No. 450-2014-00030X
Agency No. 2003-0549-2013101934
DECISION
On October 27, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 22, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented before the Commission are (1) whether an Equal Employment Opportunity Commission Administrative Judge's (AJ) decision to issue a ruling without a hearing was proper; and (2) whether Complainant established discrimination by preponderant evidence when she was not selected for the position of the Risk Management Specialist position, announced in Vacancy Announcement Number AH-13-EG820616.
BACKGROUND
During the period at issue, Complainant worked as an Informatics Registered Nurse, Quality Management Service at the Agency's North Texas Health Care System facility located in Dallas and Bonham, Texas. On April 8, 2013, she filed a formal complaint in which she alleged discrimination based on race and reprisal when she was not selected for the position of Risk Management Specialist. The Agency accepted the complaint for investigation.
After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of the right to request a hearing before an Administrative Judge. Complainant timely requested a hearing. Therefore, her case was forwarded to the appropriate EEOC District Office and assigned to the AJ. On June 3, 2014, the Agency submitted a Motion for a Decision (Motion) without a Hearing to the AJ. Complainant submitted a reply on June 18, 2014.
After reviewing both submissions, the AJ granted the Agency's Motion and, on August 13, 2014, issued a decision without a hearing finding that Complainant failed to prove discrimination as alleged. On September 22, 2014, the Agency issued a final order, which adopted fully the AJ's findings. On October 27, 2014, Complainant filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she was denied the opportunity to present relevant evidence regarding her complaint and requests that the Commission remand the matter to the AJ for a hearing. The Agency did not file contentions on appeal.
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 . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (if an AJ's determination to issue a decision without a hearing, and the decision itself, will both 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
Decision without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds 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, 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.
In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only after determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., 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.
According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means 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. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find that the record is adequately developed, no genuine issues of material fact remain, and no further fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. We note that the Agency's Motion was submitted to the AJ on June 3, 2014, and that Complainant submitted her response thereto on June 18, 2014. Thus, we find that the AJ's decision to issue a ruling without a hearing was proper.
Discrimination
Complainant alleges discrimination based on race and reprisal when she was not selected for the position of Risk Management Specialist. In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is generally a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, Complainant must prove by preponderant evidence that the legitimate reasons proffered by the Agency were pretexts for discrimination. Id. at 256. We presume, without so finding, that Complainant established prima facie cases of race and reprisal.
Pursuant to Supreme Court precedent, the burden now shifts to the Agency. The Supreme Court explained that an [Agency's] reason for its action must be legally sufficient to justify a judgment for the employee. Id. at 255. The Commission has interpreted the term "legally sufficient" to mean that the reason set forth by the Agency is of sufficient clarity as to allow the employee a full and fair opportunity to demonstrate pretext. See Parker v. U.S. Postal Serv., EEOC Request No. 05900110 (Apr. 30, 1990). Further, the Commission has held that, although the Agency's burden of production is not onerous, the Agency must provide a specific, clear, and individualized explanation for the action that affected the employee. See Teresita v. Dep't of Defense, EEOC Request No. 05950931 (Nov. 6, 1997).
We now look to see whether the Agency stated a legitimate, nondiscriminatory reason for the action alleged to be discriminatory. The Agency stated that Complainant was not selected for the Risk Management position because a three-person interview panel's rating of the qualified applicants, which included Complainant, indicated that the Selectee was the most qualified applicant based on her interview score, and thus the Selectee was chosen for the position.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. To prevail on her claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons were pretexts for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward her based on race and reprisal.
In her attempt to show pretext, Complainant asserts that the interview questions were not performance based but rather were slanted in favor of the Selectee. Complainant further asserts that the Selectee possessed inside knowledge of and familiarity with the position, and may have been given an unfair advantage prior to or during the selection process. Complainant argues that the Selectee was given certain information and verbal assurances by the Selecting Official (SO) that were not afforded to Complainant or other minorities working in the department. We note that none of this is substantiated in the ROI.
To bolster her position, Complainant states that the SO showed favoritism toward her Caucasian peers and subordinates by referring to them as "her peeps." Complainant also stated that after learning of her prior EEO complaint, the SO gave Complainant "Satisfactory" work ratings for work which previously earned her ratings of "Highly Satisfactory" or "Outstanding."
The Commission finds that Complainant presented no evidence, other than her own belief, to demonstrate that her race or prior EEO activity were factors in the decision not to select her for the position at issue in this case. However, such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011).
Complainant could establish pretext in this case by demonstrating that her qualifications are "plainly superior" to those of the Selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981). We note, however, that no such evidence was shown by Complainant or revealed in the ROI. Upon review, the Commission finds that Complainant has not met her burden to show that the Agency's stated reasons were pretextual.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's decision to issue a ruling without a hearing was proper. We further find that Complainant did not establish discrimination by preponderant evidence when she was not selected for the Risk Management position, announced in Vacancy Announcement Number AH-13-EG820616. Accordingly, the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__4/24/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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