Archie L. Wall, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 23, 2011
0120110072 (E.E.O.C. Dec. 23, 2011)

0120110072

12-23-2011

Archie L. Wall, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.




Archie L. Wall,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120110072

Agency No. 200J05562009104445

DECISION

On August 2, 2010, Complainant filed an appeal from the Agency’s July

15, 2010, final decision concerning his 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 Commission deems the appeal timely and accepts it

pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,

the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

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

as a Gardener at the Agency’s Department of Veterans Affairs Medical

Center in Chicago, Illinois.

On September 28, 2009, Complainant filed an EEO complaint alleging

that the Agency discriminated against him on the bases of race

(African-American) and reprisal for prior protected EEO activity when

management conducted an inquiry into an incident which occurred on

January 30, 2009, which ultimately led to his removal from his position,

effective August 31, 2009.

The Agency conducted an investigation into Complainant’s claims.

The evidence gathered during this investigation shows that his first-level

supervisor, the Operations Supervisor (African American male), submitted

a written report to his superiors indicating that on January 30, 2009,

Complainant came into the workroom screaming about how one of his

co-workers (Co-worker 1) had driven by him in a truck and left him to

walk in the cold. Complainant allegedly called Co-worker 1 a “punk”

and said that he wanted to kill him. The Operations Supervisor said he

told Complainant that Co-worker 1 could not have driven by him, because

he had just gone to the bathroom. At that moment, Co-worker 1 came out

of the bathroom.

The Operations Supervisor said his own supervisor instructed him to send

a letter of inquiry to Complainant detailing the incident and asking for

a written response. The Operations Supervisor also gathered written

statements from two coworkers who witnesses the incident, as well one

from Co-worker 1 confirming the incident occurred as represented by the

Operations Supervisor. These corroborating statements were signed by

the coworkers in February and March 2009.

Based on the Operations Supervisor’s report, as well as the other

witness statements, the Chief of Facility Management (white male)

recommended that Complainant be terminated in a letter of proposed

removal dated on April 9, 2009. The proposal charged Complainant with

“inappropriate conduct in the workplace” as a result of the January

9, 2009 incident. The proposal letter noted that Complainant’s prior

disciplinary record had been considered, including a September 2008

30-day suspension for unauthorized removal of government property and a

March 2000 30-day suspension for unauthorized use of government property.

Complainant responded to the proposal. However, on August 21, 2009, the

Medical Center Director affirmed the proposal and issued a final removal

decision. Prior to this removal decision, the Medical Center Director

offered Complainant a Last Chance Agreement, but he refused to sign it.

Complainant contended that the Operations Supervisor unfairly wrote up

discipline reports about him on numerous occasions and generally treated

him poorly. Complainant argued during the investigation that he was

never given a chance to respond to the allegations and does not agree

with the above version of events.

Co-worker 2, who appears from the record to be Complainant’s friend,

stated in the investigation that he never witnessed Complainant making

threats and that both of them were subjected to a hostile working

environment. Both Complainant and Co-worker 2 alleged an incident,

although they did not specify the date, in which the Operations Supervisor

who is also African American, came up to him and Complainant and called

them “bitch” and “hoe,” made threats, and told them that they

wore women’s underwear.

At the conclusion of the investigation, the Agency provided Complainant

with a copy of the report of investigation and notice of his right

to request a hearing before an EEOC Administrative Judge (AJ). When

Complainant did not request a hearing within the time frame provided in

29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to

29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed

to prove that the Agency subjected him to discrimination as alleged.

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 Equal

Employment Opportunity Management Directive for 29 C.F.R. Part 1614,

at Chapter 9, § VI.A. (November 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”).

To prevail in a disparate treatment claim absent direct evidence of

discrimination, Complainant must satisfy the three-part evidentiary scheme

fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973). Complainant carries the initial burden

of establishing a prima facie case by demonstrating that he or she 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). Proof of a prima facie case will vary depending

on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802

n. 13. The burden then shifts to the Agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs

v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,

Complainant bears the ultimate responsibility to prove, by a preponderance

of the evidence, that the reason proffered by the Agency was a pretext for

discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,

120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519

(1993).

The Agency argued in its final decision that Complainant failed to

make out a prima facie case of disparate treatment regarding his

termination because the Agency had not yet hired a new employee to

replace Complainant. Here, the issue is Complainant’s termination and

whether the Agency’s reasons for removing Complainant were a pretext

for discrimination. It is irrelevant as to whether the Agency hired

someone to fill his position. However, the Commission finds that even

assuming arguendo that Complainant was able to establish a prima facie

case of discrimination as alleged, he did not show by a preponderance of

the evidence that the Agency’s legitimate, non-discriminatory reasons

were a pretext for discrimination.

On appeal, Complainant argues that the report of investigation

contains lies and inaccurate information. The Commission notes that

Complainant did not request a hearing where he could have challenged

the credibility of statements made during the investigation. We find

that Complainant has not provided sufficient evidence to prove that

the Agency’s reasons for its action—namely, Complainant’s past

behavioral issues and the January 2009 incident—were not credible

and were a pretext for discrimination. Although the record shows

that Complainant and the Operations Supervisor had a poor working

relationship, the Operations Supervisor’s version of events was

supported by Complainant’s colleagues. Additionally, although the

incident of the Operations Supervisor allegedly calling Complainant and

Co-worker 2 vulgar names, was, if true, unprofessional at best, there is

no evidence that these comments were made out of racial or retaliatory

animus toward Complainant’s protected classes. We find, therefore,

that Complainant has failed to establish pretext.

Finally, to the extent that Complainant is alleging that he was subjected

to a hostile work environment, the Commission notes that harassment of

an employee that would not occur but for the employee's race, color,

sex, national origin, age, disability, religion or prior EEO activity

is unlawful, if it is sufficiently patterned or pervasive. Wibstad

v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing

McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC

Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8,

1994). In determining that a working environment is hostile, factors to

consider are the frequency of the alleged discriminatory conduct, its

severity, whether it is physically threatening or humiliating, and if it

unreasonably interferes with an employee's work performance. See Harris

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance

at 6. The Supreme Court has stated that: “Conduct that is not severe

or pervasive enough to create an objectively hostile work environment -

an environment that a reasonable person would find hostile or abusive -

is beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).

After a review of the record, the Commission finds that Complainant's

claims do not constitute discriminatory harassment. The Commission

concludes that Complainant did not prove that he was subjected to conduct

sufficiently severe or pervasive to create a hostile work environment and

that he also failed to prove that the Agency's actions were unlawfully

motivated by his protected classes. Moreover, there is no evidence

that the Agency was motivated by discriminatory animus. Accordingly,

Complainant has not shown that he was subjected to a discriminatory

hostile work environment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the

Agency’s FAD and finding of 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

December 23, 2011

__________________

Date

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0120110072

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120110072