U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tania O.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120142224 Hearing No. 461-2012-00033X Agency No. 2003-629-2011101395 DECISION On May 22, 2014, Complainant filed an appeal from the Agency's May 16, 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 VACATES the Agency's final order. BACKGROUND The record reveals that Complainant was selected for the position in the Ambulatory Procedure Unit (APU) at the Southeast Louisiana Veterans Health Care System (SLVHCS) and was reassigned to the position effective July 4, 2010. At the time of her reassignment, Complainant was informed that her rate of pay would include an additional two steps for serving in a Head Nurse Position, effectively increasing Complainant's rate of pay from a Nurse III, Step 8 to a Nurse III, Step 10. Per VA Handbook 5007/34, Part III, Chapter 8, "Higher Rate of Pay for Assignment as Head Nurse [/Nurse Manager)] or Possession of Specialized Skill," issued on January 7, 2009, in order to be eligible for the two-step increase for Nurse Managers: Individuals in head nurse (nurse manager) assignments must exercise first line supervisory responsibility over a [patient care team] which contains at least the equivalent of three full-time subordinate [patient care team members] (registered nurses, licensed practical nurses, nursing assistants, technicians, clerks or other licensed/certified clinicians). At least two of the patient care team members must be in a nursing position (i.e. registered nurse, licensed practical nurse, nursing assistant). A patient care area is defined as a geographic location or program with patient care delivery of responsibilities across the continuum of care. The Associate Director, Patient Nursing Services at the SLVHCS provided the SLVHCS Director and Human Resources Management Service with her interpretation of the VA Handbook 5007/34, Part III, Chapter 8, as it related to Complainant. The Associate Director stated that Complainant did not meet the criteria for the two-step increase for Nurse Managers outlined in the VA Handbook because the APU to which Complainant was assigned was not activated, nor were there staff on duty over which Complainant could exercise supervisory responsibility at the time of her reassignment. The SLVHCS Director was notified by the Associate Director that Complainant had been given the two-step increase for Head Nurses in error because Complainant's position did not meet the requirement of VA Handbook 5007/34, Part III, Chapter 8. On July 20, 2010, Complainant was contacted by a Human Resources Staffing Supervisor, who informed her that the two-step increase for the Head Nurse position was being rescinded due to the fact that Complainant did not supervise any nurses at the time she was given the two-step increase. Complainant's two-step Nurse Manager pay was reinstated effective October 10, 2010, once the Agency determined she was meeting the requirements of the VA Handbook 5007/34, Part III, Chapter 8. On March 7, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when: On July 14, 2010, Complainant received notice that her Head Nurse, two-step rate adjustment 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on March 31, 2014. In his decision, the AJ assumed Complainant established a prima facie case of discrimination based on her race. The AJ found the Agency articulated a legitimate, nondiscriminatory reason for rescinding the two-step increase, because Complainant was not supervising subordinates at the time. The AJ found the record established Complainant was reassigned as Head Nurse of the new APU of the SLVHCS, but at the time of her hiring the newly created unit was not operational and did not have employees to manage. The AJ noted the Agency's handbook states that in order to be eligible for the two-step increase a Head Nurse must exercise first-line supervisory responsibility over a patient care team containing at least the equivalent of three fulltime subordinate patient care team members, with at least two of the patient care team members being nurses. The AJ stated that with no employees under Complainant's supervision, the Agency could not justify the two-step increase. The AJ noted that once Complainant's new unit was staffed, her two-step increase was reinstated. The AJ noted Complainant contended Comparative 1 was treated more favorably. The AJ stated that Comparative 1 is the Head Nurse for the Hammond Community Based Clinic (CBOC). The AJ stated the record shows that the Hammond CBOC was staffed and operational at the time Comparative 1 was hired as Head Nurse. The AJ stated that even if Comparative 1 initially split her time between her former position and the Head Nurse position until her replacement in Patient Safety could begin, Comparative 1 nonetheless assumed supervisory responsibility for her staff in Hammond upon assuming her role of Head Nurse. The AJ noted that Complainant also contended that Comparative 2 received more favorable treatment, but that other than providing a name, she provides no evidence that the individual was similarly situated. Thus, the AJ found Complainant failed to prove that other employees she compares herself to are in fact similar in substantially all aspects. The AJ determined Complainant failed to provide any evidence that the Agency's articulated legitimate, nondiscriminatory reason for correcting her pay was a pretext for unlawful discrimination. The Agency subsequently issued a final order on May 16, 2014. The Agency's final order fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant states that while it is true that the Hammond CBOC was staffed and fully operational at the time Comparative 1 was hired as a Head Nurse, Complainant claims Comparative 1 did not supervise staff upon the acceptance of the position. Complainant states that Person X, Registered Nurse was Acting Nurse Manager of Hammond CBOC from July 2009 until December 2009. Complainant notes that while Comparative 1 visited the Hammond CBOC on Friday's beginning in October 2009, she did not provide supervisory responsibility until her transfer on January 3, 2010. Complainant also states that she was similarly situated to Comparative 2, Registered Nurse, Nurse Manager of the Urgent Care Center. Complainant claims that Comparative 2 received the two-step pay rate upon acceptance of the position, which was offered months before the opening of the Urgent Care Center, which occurred in September 2008. Finally, Complainant states that she was similarly situated to Comparative 3, former Administrative Officer to the Chief of Staff (GS-13), who was selected as Chief of Nutrition and Food Service (GS-14) around May 2010. Complainant claims that Comparative 3 received GS-14 pay upon acceptance of the position despite the fact that there was no operating hospital or kitchen at the time in question. In response to Complainant's appeal, the Agency argues the record demonstrates that it articulated legitimate, nondiscriminatory reasons for temporarily rescinding Complainant's two-step rate adjustment. Specifically the Agency notes that VA Handbook 5007/34, Part III, Chapter 8, mandated that a head nurse or nurse manager must exercise first line supervisory responsibility for a patient care team to be eligible for a higher rate of pay. The Agency notes that Complainant conceded that "[a]t the time of her reassignment, the APU was not yet operational and Complainant did not exercise first-line supervisory responsibility over any employees." The Agency notes that once Complainant assumed first-line supervisory responsibility, her two-step pay increase was promptly reinstated. The Agency recognizes that Complainant attempts to challenge the Agency's articulated reasons by presenting allegedly similarly situated employees. The Agency argues that Complainant's challenge fails because Comparative 1 assumed first-line supervisory responsibility when she was initially hired; Complainant did not provide evidence that Comparative 2 was similarly situated; and Comparative 3 was hired as Chief of Nutrition and Food Service, not as a Nurse Manager. Additionally, the Agency notes that Complainant failed to demonstrate that the actions taken by management were in any way linked with her race. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R.§ 1614.405(a). See EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, § VI.A. (Nov. 9, 1999) (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"). We must 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. 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (February 24, 1995). After a careful review of the record, we find that the AJ erred when he concluded that there were no genuine issues of material fact outstanding in this case. In the present case, the record contains a dispute as to whether the alleged comparatives were similarly situated to Complainant. The record contains an affidavit from the Associate Director stating that Comparative 1 initially split her time between the Patient Safety Program and the Nurse Manager position at Hammond. The Associate Director stated that Comparative 1 assumed supervisory responsibility for the Hammond Staff upon her assignment as a Nurse Manager, thus meeting the criteria outlined in the VA Handbook for the two-step rate adjustment. In her affidavit, Complainant states that arrangements were eventually made for Comparative 1 to visit Hammond on Fridays to get acclimated to her new assignment. Complainant claims, however, that initially Comparative 1 was not going there to manage; she was going for orientation. Complainant states there was another acting RN nurse manager during the relevant time who received a two-step rate adjustment for acting in that role. Thus, Complainant states Hammond had another manager for the staff, even though Comparative 1 was going there on Fridays to be oriented to the environment. Additionally, we note that Complainant has alleged that Comparative 2 was similarly situated to her in that she was the Nurse Manager of the Urgent Care Center and received a two-step pay rate upon acceptance of that position, which occurred months before the opening of the Urgent Care Center, in September 2008. We note the Associate Director was not asked in her affidavit whether Comparative 2 received a two-step pay rate while serving as a Nurse Manager of the Urgent Care Center, under the circumstances alleged by Complainant. Finally, we note that Complainant has alleged that Comparative 3 was similarly situated to her when Comparative 3 was promoted from a GS-13 to a GS-14 as the Chief of Nutrition and Food Service when there was no facility and/or a dietary staff at the time of promotion. As Comparative 3's situation involved a promotion versus a two-step pay rate increase, we find Comparative 3 is not a proper comparative in this case. The evidence in the record, viewed in a light most favorable to Complainant, is thus sufficient to establish a genuine issue of material fact as to whether the Agency's nondiscriminatory reason was pretextual. Therefore, we shall remand the complaint so Complainant may have a hearing on the complaint. CONCLUSION Accordingly, the Agency's final order finding no discrimination is VACATED and the complaint is REMANDED for further processing in accordance with this decision and the Order listed herein. ORDER The Agency shall submit to the Hearings Unit of the EEOC's New Orleans Field Office the request for a hearing and a copy of the complaint file to the EEOC Hearings Unit within 15 calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth herein that the request for a hearing and the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. §1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 20013. 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 (M0815) 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, 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 (R0610) 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 (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 April 14, 2016 __________________ 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142224 2 0120142224