0120122430
11-02-2012
Kim Marcelle, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kim Marcelle,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122430
Hearing No. 430-2011-00364X
Agency No. 2004-0659-2011100388
DECISION
Complainant filed an appeal with this Commission concerning her complaint of unlawful employment discrimination. For the reasons set forth, we AFFIRM the Agency's decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was employed as a Medical Support Assistant at the Agency's Veterans Affairs Medical Center (VAMC) in Salisbury, North Carolina. Believing that she was a victim of discrimination, Complainant sought EEO counseling and subsequently filed a formal complaint.
Complainant alleges discrimination on the basis of race (African-American) when:
1. On November 8, 2010, Complainant was not selected for the position of Supervisory Medical Administration Specialist, GS-301-07, under vacancy announcement number 10-277.
2. On November 19, 2010, Complainant was not selected for the position of Medical Records Technician (Coder), GS-675-6/7/8, under vacancy announcement number 10-290.1
At the conclusion of the investigation, Complainant received a copy of the investigative report. Additionally, the Agency informed Complainant of her right to request a hearing before an EEOC Administrative Judge (AJ), or alternatively, to receive a final decision from the Agency. Complainant requested a hearing before an AJ.
On March 14, 2012, an AJ issued a decision without a hearing finding that there was no genuine issue of material fact in dispute, and concluded that Complainant had not been discriminated against as alleged. Specifically, the AJ found the Agency presented legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut.
On April 11, 2012, the Agency, fully implementing the AJ's decision, issued a decision finding no discrimination. Complainant appealed from that decision.
On appeal, Complainant contended that the AJ's decision without a hearing was unwarranted. First, for the Supervisory Medical Administrative Specialist position, Complainant asserted that the Agency selected an African-American male employee. Complainant argued that this was not reflective or comparable to her as a black female, especially given Complainant's articulation of the hostility shown her by the selecting official. Complainant stated that whether this was a factor can be determined only by a credibility finding at hearing.
For the second position, Complainant said that the AJ identified the Agency as having offered nondiscriminatory reasons for its actions. Complainant claimed that the problem with this was that it was based on a factor (possession of coding certificates) that was not a requirement to qualify for the position, and that the Responsible Management Official (RMO) knew would disqualify Complainant when the requirement was imposed after the solicitation of applicants. Complainant said that there was no showing as to why the requirement was imposed, why it would be inherent to have such for a selectee or, if so, why this was not a requirement spelled out in the announcement. Complainant argued that the AJ ignored this point in her decision noting that the job announcement for a position was not an exhaustive description of what may be considered in a selection. However, Complainant said that the AJ missed the point of what happened in the current case. Complainant asserted that this was not a case where other qualifications for the selectee were considered, but rather one where an undisclosed criterion was created after the announcement to preclude Complainant from even being considered, and there was no case law supporting such an action.
In response to Complainant's appeal, the Agency argued that the AJ's issuance of a decision without a hearing was appropriate. With respect to the first non-selection, the Agency asserted that the AJ found that Complainant failed to establish a prima facie case of discrimination, based on race, because the selectee was of the same race as Complainant. The Agency noted that, on appeal, Complainant acknowledged that she and the selectee were from the same race. However, Complainant stated that because the selectee was male, and Complainant was female, his circumstances were not comparable to hers. The Agency claimed that Complainant could have, but did not, assert discrimination based on sex. Therefore, the fact that Complainant was female and the selectee was male was not relevant.
With respect to the second non-selection, the Agency stated that the AJ found that management selected only applicants who had coding experience and had earned a professional certification in coding. The Agency noted that, on appeal, Complainant argued that coding certification was not a requirement of the position set forth in the vacancy announcement. The Agency claimed that this was the same argument that was made before and considered by the AJ. The Agency asserted that, as the AJ correctly found that experience in an area not specifically cited in a vacancy announcement does not preclude its consideration in the selection process as long as it is applied uniformly to all candidates without discriminatory intent. The Agency argued that the AJ's decision was thorough and well analyzed; and consequently, the Agency requested that the final order be affirmed.
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Upon review, we find summary judgment was appropriate as no genuine issues of material fact exist. Regarding claim 1, the Chief of the Health Administration Service (Chief) stated that Complainant and the selectee were qualified candidates for the position. The Chief said that she participated in the interview panel. The Chief claimed that all candidates were asked the same performance based questions. The Chief asserted that the selectee was ranked number 1 and Complainant was ranked number 4 by the interview panel. The Chief articulated that the selectee was selected because he had 10 years of supervisory experience, was the VA Administrative Employee of the month, served as a trainer, and had completed supervisory instructional programs. In comparison, the Chief said that Complainant had 2 years of supervisory experience. The Chief stated that Complainant's race was not a factor in her non-selection.
As to claim 2, the Chief stated that, due to the large volume of applicants, an applicant review panel was instituted to review the applications. The Chief said that the panel reviewed each application and only ranked candidates who had coding experience and coding professional certificates. The Chief asserted that she selected selectee A, selectee B, and selectee C for the position based on a list provided to her from the panel. The Chief claimed that the races of the selectees were unknown during the selection process. The Chief argued that Complainant did not have coding credentials and was not ranked. The Chief articulated that Complainant's race was not a factor in her non-selection.
After a careful review of the record and contentions on appeal, the Commission finds that Complainant failed to rebut the Agency's articulated legitimate, nondiscriminatory reasons its nonselections. Additionally, the Commission finds that Complainant failed to show that her qualifications for the Supervisory Medical Administration Specialist and Medical Records Technician positions were plainly superior to the selectees' qualifications or that the Agency's actions were motivated by discrimination. Moreover, the Commission finds that Complainant failed to show, by a preponderance of the evidence, that she was discriminated on the basis of race.
CONCLUSION
The Agency's decision finding no discrimination is AFFIRMED.
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
November 2, 2012
__________________
Date
1 Complainant also raised the claim alleging that she was subjected to discrimination on the basis of race (African-American) when, on October 1, 2010, she was informed that effective October 12, 2010, she would be detailed from her position while management conducted an investigation into allegations that she engaged in patient abuse. On March 10, 2011, the Agency issued a decision dismissing this issue. There is no indication in the record that Complainant challenged this issue with the AJ or raised this matter in the instant appeal. The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). Avelino Abeijon v. Department of Homeland Security (August 8, 2012). Accordingly, we will not address this matter in this decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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