0120122182
10-04-2012
Jill S. Meyer, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jill S. Meyer,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122182
Hearing No. 520-2010-00001X
Agency No. 200H067020092705
DECISION
Complaint filed an appeal from the Agency's March 22, 2012 Final Order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 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. For the following reasons, the Commission AFFIRMS the Agency's Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee of the Agency and an applicant for employment at the Agency's facility in Syracuse, New York.
On June 3, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Russian/Hungarian), religion (Jewish), age (53), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
when:
On March 9, 2009, Complainant was advised that her offer of employment for a Staff Psychiatry position was rescinded.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Over Complainant's objections, the AJ assigned to the case granted the Agency's March 9, 2010 motion for a decision without a hearing and issued a decision without a hearing on March 16, 2012.
In her Decision, the AJ found that the material facts were not in dispute. Specifically, the AJ found that Complainant had worked for the Agency in New Jersey from 1994 through 2004. In January 2009, the AJ found that Complainant applied for the position of Psychiatrist - Adult Outpatient at the Agency's Veterans Affairs Medical Center. The AJ found the Agency extended an offer of employment to Complainant by letter dated February 6, 2009, and that letter specified that the offer of employment was conditioned upon a review of Complainant's references and suitability determination. By letter dated February 24, 2009, from the Agency's Manager of Human Resources, H1, the Agency's offer was retracted. In his letter, H1 explained, the AJ noted, that his review of Complainant's official personnel folder (OPF) showed that Complainant had documented performance and interpersonal problems that made her unsuitable for the position.
The AJ found that Complainant failed to present any facts to support a prima facie case of discrimination on any basis. The AJ found no evidence that H1 was aware of Complainant's prior EEO activity, and Complainant did not show that any candidate outside of her protected national origin, religion, or age group was selected while she was not selected. The AJ observed that in her complaint, Complainant alleged that she was discriminated against because information regarding her national origin, religion, age, and prior EEO activity was available in her "file." The AJ noted that Complainant did not indicate that by "her file" she meant her OPF in particular, or if she was referring to some other file or files that she believed the Agency possessed or accessed in its decision to rescind the employment offer.
The AJ found no dispute that Complainant previously engaged in protected activity. The AJ noted that H1 denied that he was aware of Complainant's prior protected activity and based his decision on the personnel evaluations contained in Complainant's OPF. Additionally, the AJ noted that the distance between the facility where Complainant was previously employed in 2004, was several hundred miles from the facility where Complainant sought to work in 2009. The AJ found Complainant failed to present evidence that H1 was aware of her EEO activity or that documentation of her EEO history with the Agency was contained in her OPF along with her personnel evaluations.
The AJ further found that assuming Complainant had established a prima facie case of discrimination on any bases, the Agency articulated a legitimate, non-discriminatory reason for its action that Complainant failed to show was pretext for discrimination. Specifically, the AJ found that Complainant's OPF contained evidence that Complainant had been previously suspended for three days for insubordination and that she had low satisfactory performance ratings for a number of years during her career with the Agency. The AJ found that Complainant did not challenge the contents of her OPF. The AJ concluded that Complainant presented no evidence that the Agency's reasons for its action were false and that discrimination on one or more bases was the real reason for the Agency's actions. The AJ found that Complainant failed to present any evidence upon which to base a finding that the Agency had discriminated against Complainant as alleged.
The Agency subsequently issued a Final Order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
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, 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 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 administrative judge 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 administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
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 he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, we find the AJ properly entered her decision without a hearing. We find the undisputed facts show that Complainant applied and was found qualified for the subject position. We further find no dispute that Complainant's previous performance appraisals properly contained in her OPF included multiple unflattering comments and low satisfactory assessments regarding Complainant's performance and conduct during her previous tenure with the Agency. We find that Complainant did not present any evidence that her OPF contained inaccurate or misleading documents, nor any evidence that the Agency was aware of her previous performance assessments at the time the offer of employment was extended to her. We find no evidence that anything other than Complainant's OPF was considered by H1 in his decision to retract and rescind the offer of employment and specifically no evidence that H1, or any of the officials involved in any hiring decisions regarding Complainant 2009 application for employment were aware of her prior EEO activity. Even assuming for the sake of argument that Complainant established a prima facie case for all alleged bases, we find that Complainant did not present evidence from which a trier of fact could conclude that discrimination more likely than not motivated the Agency's actions.
CONCLUSION
We therefore AFFIRM the Agency's Final Order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
October 4, 2012
__________________
Date
2
0120122182
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122182