0120140590
10-30-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140590
Hearing No. 430-2012-00278X
Agency No. 200I-0544-2012100274
DECISION
Complainant filed an appeal from the Agency's November 7, 2013 final order concerning his equal employment opportunity (EEO) complaint. He alleged 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Chaplain, GS-12, at the Agency's Acute Hospice Service, Dorn Veterans Affairs Medical Center facility, in Columbia, South Carolina.
On January 20, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Nigerian), religion (Catholic), and age (62) when, effective October 11, 2011, Complainant was forced to resign after he received a Notice of Termination.
The pertinent record shows that Complainant entered on duty as a Catholic Priest Chaplin on March 28, 2011. He was hired subject to a one-year probationary period. The record shows that Complainant reported to the Chief Chaplin, who was also one of the persons who recommended Complainant's hire. Not long after Complainant began, the Chief Chaplin found Complainant's performance to be unsatisfactory. The Chief Chaplin testified that he counseled Complainant on several matters, including what the Chaplain perceived to be Complainant's failure to provide complete and accurate progress notes for his veterans. Complainant did not find the errors to be significant. Complainant also maintains that he was doing as the Chaplain had instructed. In addition, Complainant testified that the Chief Chaplin would call him by nicknames, such as "Partner" or "Chap." Complainant found this to be offensive. The record shows that the Chief Chaplain called others (not in Complainant's protected group) by the same nicknames. The Chief Chaplain testified that he recommended that Complainant be given the opportunity to resign or issued a notice of termination when Complainant's performance did not improve.
Complainant filed this EEO complaint.
The Agency accepted the complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on May 8, 2013.
During the hearing, the AJ heard testimony from Complainant and the Agency witnesses. The AJ considered Complainant's testimony that the Chief Chaplin "predetermined" to terminate him from the beginning of his employment. Complainant testified that the Chief Chaplain constantly sought out deficiencies to use as a basis to terminate him. Complainant also testified that the Chief Chaplin reprimanded him for errors that Complainant considered trivial. The Agency witnesses testified that Complainant was issued a notice of termination for failing to provide accurate progress notes on the veterans and patients.
The AJ found that Complainant failed to establish that he was subjected to discrimination based on any of the purviews asserted.1 The AJ reasoned that Complainant met the initial burden, "by virtue of him being over the age of 40, Nigerian and affirming that he is Catholic." The AJ found that Complainant presented no evidence to support his allegations of discrimination. In addition, the AJ found that Complainant "admits to each of the incidents that underlie his termination, but argues that they were insignificant." The AJ found that "neither the record evidence, nor the evidence, show that Complainant's religion, national origin, or any other prohibited factor had any impact on the termination at issue."
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.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
On appeal, Complainant does not dispute that he made errors and received a written counseling for leaving his identification badge in North Carolina. He maintains that the counseling was harassment and that the termination was unwarranted. The Agency requests that the Commission affirm the decision of the AJ, arguing that the decision is supported by the record.
Disparate Treatment
Section 717 of Title VII and Section 633(a) of the ADEA state that "all personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination."
To prevail in a disparate treatment claim, Complainant must establish 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). For purposes of our analysis, we assume that Complainant established his initial prima facie case of discrimination on the bases of national origin, religion and age. Complainant established that he is over age 40, of Nigerian national origin and of the Catholic faith and was terminated.
Complainant also alleged that he was subjected to harassment. Harassment that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) s/he is a member of a statutorily protected class; (2) s/he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. �1604.11. The record does not show that the Agency's actions were due to Complainant's national origin, religion or age.
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). 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 this case, the AJ found that the Agency articulated a legitimate nondiscriminatory reason for its actions (the Chief Chaplin believed that Complainant failed to keep accurate and complete progress notes on his patients). We uphold this post-hearing factual finding by the AJ because the finding was supported by substantial evidence in the record. Complainant did not show that the Agency's stated reason was a pretext for the alleged unlawful discrimination. The preponderance of the evidence supports the Final Order.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order.
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 tends 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 30, 2014
__________________
Date
1 We note that the AJ referred to Complainant by the wrong gender and misstated the claims on page 1 of the decision. The AJ also misspelled Complainant's name. Complainant, however, did not raise these issues on appeal.
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0120140590
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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