0120122526
03-28-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122526
Hearing No. 541-2012-00016X
Agency No. 200P-0442-201110774
DECISION
On May 23, 2012, Complainant filed an appeal from the Agency's April 18, 2012, final order 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Recreation Therapist at the Patient Care Services, Physical Medicine and Rehabilitation Services at the Agency's Medical Center in Cheyenne, Wyoming.
The record indicated that Complainant began his employment with the Agency on June 6, 2010. Complainant believed that two of his female co-workers (Therapist1 and Therapist2) did not care for him. On November 17, 2010, Complainant received a rating of "Fully Successful" from his supervisor (Supervisor). Following the rating, Complainant indicated that the Supervisor began discussing communication problems with others and allegedly threatened him with termination. Subsequently on January 24, 2011, Complainant received a termination letter effective February 2, 2011. The Supervisor recommended his termination for failure to qualify during his probationary period. The Supervisor also indicated that Complainant was cited for failure to communicate with various staff members and for failure to document an appropriate plan of care with established patient goals. The termination letter was issued by the Chief.
On November 19, 2010, Complainant contacted the EEO Office. On February 25, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. He was subjected to a hostile work environment from July 2010 to November 17, 2010.
2. He was terminated effective February 4, 2011.
The Agency dismissed Complainant's claim of harassment. The only issue investigated by the Agency was the termination effective February 4, 2011.
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). Complainant timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency's January 11, 2012, motion for a decision without a hearing and issued a decision without a hearing on April 2, 2012.1
The AJ determined that there were no genuine issues of material fact. The AJ noted that Complainant withdrew the basis of reprisal. Therefore, the only issue before the AJ was Complainant's claim that he was subjected to sex-based discrimination when he was terminated during his probationary period.
The AJ noted that Complainant attempted to assert that he had disagreements with Therapist1 and Therapist2 was evidence of sex-based discrimination. As such, Complainant argued that he was subjected to disparate treatment. Further, Complainant claimed that he had been rated "fully successful" and should not have been terminated. The AJ found that these assertions were not enough to establish a prima facie case of sex-based discrimination.
Complainant then argued that he had been subjected to a hostile work environment. The AJ was not persuaded by his assertions. She indicated that Complainant did not assert that the workplace was stressful. He merely asserted that the Supervisor was not helpful. The AJ found that Complainant had not shown that the workplace was so severe to establish a hostile work environment. Accordingly, the AJ concluded that Complainant did not show that the Agency's action constituted a violation of Title VII.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed.
ANALYSIS AND FINDINGS
Summary Judgment
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Termination
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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 persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency has provided legitimate, nondiscriminatory reasons for terminating Complainant. The Supervisor averred that she received numerous complaints about Complainant's poor ability to communicate and complete required tasks. She noted that the Agency investigated Complainant's performance through chart reviews and interviews with others. The Supervisor indicated that she spent eight to ten hours of her week trying to resolve issues around Complainant. She received numerous complaints from in-house staff, volunteers and outside entities about Complainant. Based on all the complaints and the amount of time required to resolve them, the Supervisor determined that Complainant was not a good fit for the position at the facility. As such, she recommended his termination. The Chief approved the termination based on the Supervisor's recommendation. We find that the Agency has established legitimate, nondiscriminatory reasons for its decision.
We turn to Complainant to establish that the Agency's reasons were pretext for sex-based discrimination. Complainant asserted that he had been performing at a "fully successful" level and was not aware of the communication issues. He also claimed, without proof, that the Supervisor would take the side of his female co-workers over his own. We determine that these assertions alone do not show that the termination occurred because of his sex. Further, Complainant provided statements from two Agency employees in support of his claim of discrimination. One was a Chaplain who stated that he had no issues with Complainant. However, as noted by the AJ, the Chaplain did not interact with Complainant at the same level as the Supervisor, other medical staff, or the patients. The other statement was from a Nurse. She indicated that Complainant's charting had improved. She did not contradict the Agency's assertion that there were problems with Complainant's performance. As such, we are not persuaded by the statements provided by Complainant in support of his claim of discrimination. Upon review, we conclude that Complainant has not provided sufficient evidence to establish that the Agency's termination action constituted discrimination based on sex in violation of Title VII.
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 final action implementing the AJ's decision 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
March 28, 2014
__________________
Date
1 We note that the AJ's "Order of Dismissal" is dated March 30, 2012. However, the certificate of mailing indicated that the decision was issued on April 2, 2012.
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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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