0120081399
07-08-2009
Danny Wilson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Danny Wilson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081399
Hearing No. 480200600463X
Agency No. 200PV1222006101361
DECISION
On February 1, 2008, complainant filed an appeal from the agency's January
4, 2008 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Voucher Examiner, GS-5, at the agency's Long Beach, California facility.
Complainant alleges that he has been subjected to discrimination and
harassment by his supervisor.
In April 2005, complainant's supervisor issued him a mid-year performance
appraisal. Complainant received an "unsatisfactory" rating for customer
service, and it was noted that he had provided poor customer service
to three individuals. Complainant later pointed out that one of the
individuals was a contractor, and the performance appraisal was changed
to note that he provided poor customer service to two individuals.
This performance appraisal was not a final appraisal, and did not become
part of his Official Personnel File.
Complainant alleges that on May 13, 2005, his supervisor accused him
of unacceptable customer service in relation to an incident that was
already resolved.
On or about November 2, 2005, complainant brought an application for the
VA Leadership Program to his supervisor for his signature. The supervisor
informed complainant that the application was incomplete, and that he
did not meet the minimum requirements, such as his length of VA service
and a minimum GS level of 7.
On December 8, 2005, complainant alleges that his supervisor accused
him of not knowing how to process rejected invoices. The supervisor did
not recall accusing complainant of not knowing how to process invoices,
but stated that complainant had performance deficiencies.
On January 1, 2006, complainant was denied a performance bonus.
Complainant's supervisor stated that complainant was not recommended for
a bonus because his general performance during the 2005 fiscal year,
coupled with his unsatisfactory performance in customer service, did
not warrant a performance bonus.
On January 27, 2006, complainant alleges that his supervisor tried to
solicit damaging information regarding him from a co-worker. Further,
complainant was told that his supervisor could provide others who would
confirm that complainant was not doing a good job at work. The co-worker
denied that anyone tried to solicit damaging information from her about
complainant.
On January 27, 2006, complainant contacted the EEO Program Manager.
Complainant did not ask the EEO Program Manager about filing a formal
complaint, but instead inquired about mediation for a conflict that he
was having with his supervisor. The EEO Program Manager's EEO Specialist
subsequently forwarded complainant's request for mediation to the Conflict
Resolution Manager.
On February 13, 2006, complainant requested that he be allowed to meet
with the Education Office. Prior to giving his approval, complainant's
supervisor asked for more information to gauge whether the meeting
was agency-related. Complainant provided the supervisor with more
information, and the supervisor subsequently approved complainant's
request to attend the meeting.
On March 16, 2006, two managers kept a Black female employee behind
closed doors and loudly questioned her about a negative e-mail she
sent to other employees about the poor quality of a training class.
Complainant was not involved with this meeting, nor was he involved with
the subject of this meeting.
On February 14, 2006, complainant initiated EEO Counselor contact.
On March 7, 2006, complainant filed an EEO complaint alleging that he
was harassed, subjected to a hostile work environment, and discriminated
against on the basis of race (Black) when:
1. On January 14, 2005, management delayed giving him work message
privileges;
2. In April 2005, his supervisor issued a performance evaluation in
which it was noted that he had provided poor customer service to three
individuals (which was later reduced to two individuals), and he received
a Lower Than Satisfactory rating in the element of customer service;
3. On May 13, 2005, his supervisor accused him of unacceptable customer
service in relation to an incident that was already resolved;
4. On November 2, 2005, his supervisor failed to process his applications
for the VA Leadership Program, thereby denying him the opportunity to
participate;
5. On December 8, 2005, his supervisor accused him of not knowing how
to process rejected invoices;
6. On January 1, 2006, he was denied a performance bonus;
7. On January 27, 2006, his supervisor tried to solicit damaging
information from another employee about him, and told him that he could
"provide others who are saying [complainant is not] doing a good job
here";
8. Between January 27, 2006, through March 6, 2006, the EEO Program
Manager misled and/or delayed in providing complainant with information
on who to contact to file an EEO complaint;
9. On February 13, 2006, complainant's supervisor initially denied his
request to go to the Education Office to obtain information on classes
and refunds; and
10. On March 16, 2006, two managers kept a Black female employee behind
closed doors for approximately 20 minutes, loudly questioning her about
an email in which she had confirmed a Black male employee's statement
about the poor quality of a training class given on March 14, 2006.
At the conclusion of the investigation, complainant was provided 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. On December 10, 2007, the AJ issued a decision
without a hearing. The AJ dismissed complainant's claims 1-4 for untimely
EEO Counselor contact. Further, the AJ found that complainant failed to
establish his prima facie cases of harassment and discrimination because
he did not establish that the agency's actions were based on his race, nor
did he establish that the actions were sufficiently severe or pervasive
to rise to the level of actionable harassment. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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 first 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. Department of Defense, 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
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
After a careful review of the record we find that the AJ's issuance of a
decision without a hearing was appropriate. The record has been adequately
developed, complainant was given notice of the agency's motion to issue
a decision without a hearing, he was given an opportunity to respond to
the motion, he was given a comprehensive statement of undisputed facts,
and he had the opportunity to engage in discovery. We find that, even
if we assume all facts in favor of complainant, a reasonable fact finder
could not find in complainant's favor, as explained below. Therefore,
no genuine issues of material fact exist.
Additional Claims
Prior to the AJ issuing a decision, complainant submitted numerous
documents which indicated that complainant was subjected to discipline
after the filing of his EEO complaint. While complainant did not
informally or formally request that the disciplinary action be added
to his complaint, the AJ considered the submission of the documents
as a request to add issues to the complaint. The AJ found that the
disciplinary actions were not like or related to the issues raised in
complainant's EEO complaint, and as a result, the complaint was not
amended to include those claims. Upon review, we find that complainant
submitted paperwork referring to a May 2006 reprimand, an August
2006 7-day suspension, a February 2007 14-day suspension, a May 2007
placement in administrative paid leave, and a removal in August 2007.
We agree with the AJ that these actions were not like or related to the
issues raised in complainant's EEO complaint, and an amendment to the
complaint was not appropriate.1
Dismissed Claims
The AJ dismissed claims 1-4 for untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. � 1614.105(a)(2).
The AJ properly dismissed complainant's claims 1-4 on the grounds of
untimely EEO Counselor contact. The record supports a finding that
complainant had actual or constructive notice of the time limit for
contacting an EEO Counselor, and that complainant reasonably should have
known of the discrimination more than 45 days prior to his EEO contact.
Therefore, complainant's February 14, 2006 EEO Counselor contact was
untimely.
Nonetheless, we note that "[b]ecause the incidents that make up a
hostile work environment claim collectively constitute one unlawful
employment practice, the entire claim is actionable, as long as at
least one incident that is part of the claim occurred within the filing
period. This includes incidents that occurred outside the filing period
that the [complainant] knew or should have known were actionable at the
time of their occurrence." EEOC Compliance Manual, Section 2, Threshold
Issues at 2-75 (revised July 21, 2005) (citing National Railroad Passenger
Corp. v. Morgan, 536 U.S. 101, U.S. (2002)). Therefore, we will consider
the untimely acts as background evidence in complainant's overall hostile
work environment claim.
Investigation
On appeal, complainant asserts that the investigation was inadequate.
A review of the record reveals that complainant failed to cooperate in
the investigation, and did not submit a signed declaration or affidavit
to support the facts that he asserted to the EEO Counselor and in his
formal complaint. Despite this, we find that the record is sufficiently
developed for a reasonable fact finder to make a determination.
Therefore, we find that the investigation was adequate.
Disparate Treatment
Complainant asserts that he was discriminated against based on his race
when he was accused of not knowing how to process rejected invoices,
denied a bonus, his supervisor tried to solicit damaging information
from another employee about him, the EEO Program Manager did not provide
him with information regarding the EEO process, his request to go to
the Education Office was initially denied, and management questioned a
Black female employee. To prevail in a disparate treatment claim such
as this, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish 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 Construction 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 804 n. 14. The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
The McDonnell Douglas analytical paradigm need not be adhered to in all
cases. In appropriate circumstances, when the agency has articulated
legitimate, nondiscriminatory reasons for its conduct, the trier of fact
may dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, i.e., whether the complainant has proven by the
preponderance of the evidence that the agency's explanations were pretext
for discrimination. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983). Here, we will assume without
so finding that complainant established his prima facie case of race
discrimination.
The agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, complainant's supervisor does not recall
accusing complainant of not being able to process rejected invoices.
The supervisor asserts that complainant was denied a performance based
bonus because his performance for fiscal year 2005 did not warrant
a bonus. The supervisor denies trying to solicit damaging information
about complainant. Further, the supervisor asserts that complainant's
request to go to the Education Office was granted once complainant
explained that it was agency related. Additionally, the discussion with
the Black female employee had nothing to do with complainant. Finally,
the agency asserts that the EEO Program Manager referred complainant to
the Conflict Resolution Manager because complainant requested mediation
for a conflict with his supervisor.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, nondiscriminatory reasons
were pretext for discrimination. The record reveals that in fiscal
year 2005, complainant had performance issues relating to customer
service, and as a result, he was not granted a performance bonus.
Additionally, the record establishes that complainant's supervisor had
reason to question complainant's ability to process rejected invoices
based on complainant's performance deficiencies. Further, complainant's
co-worker denies that she was asked to provide damaging information about
complainant. The record establishes that complainant specifically asked
the EEO Program Manager about resolving the conflict with his supervisor
through mediation, and the EEO Program Manager appropriately referred
him to the Conflict Resolution Manager. Additionally, complainant
failed to identify any other employees who were not required to first
show that going to the Education Office was agency related before they
were approved to go to the office. Finally, the record establishes that
complainant was in no way involved in the meeting between management and a
Black female co-worker, nor was he related to the subject of the meeting.
Complainant failed to establish that discriminatory animus more likely
than not played a role in any of the agency's actions, and as a result,
complainant failed to establish that the agency's articulated legitimate,
nondiscriminatory reasons were pretext for discrimination.
Harassment
Complainant alleges that he was subjected to harassment and a hostile
work environment based on his race. Harassment is actionable only if
the incidents to which complainant has been subjected were "sufficiently
severe or pervasive to alter the conditions of [complainant's] employment
and create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75 (1998); Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). To establish a prima facie
case of harassment, complainant must show that: (1) he is a member of a
statutorily protected class and/or was engaged in prior EEO activity;
(2) he was subjected to unwelcome verbal or physical conduct related
to his membership in that class and/or his prior EEO activity; (3) the
harassment complained of was based on his membership in that class and/or
her prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a
basis for imputing liability to the employer. See Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000) (citing
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the
harasser's conduct is to be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8,
1994).
Upon review, the Commission finds that complainant has failed to establish
a prima facie case of harassment because complainant has not shown that
the alleged harassment was based on his race. There is nothing in the
record that would indicate that complainant's race was more likely than
not a motivating factor in any of the agency actions. Further, we find
that the alleged incidents are not sufficiently severe or pervasive to
alter the conditions of complainant's work environment. As a result,
complainant failed to establish that harassment existed.
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 order, because a preponderance of the evidence does not establish
that discrimination occurred as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
July 8, 2009
Date
1 We remind complainant that new claims of discrimination should be
brought to the attention of an EEO Counselor within 45 days of the date
of the alleged discriminatory act. See 29 C.F.R. � 1614.105(a)(1).
Should complainant wish to pursue these matters, the date on which he
brought the matters to the attention of the AJ will be deemed the date
of initial EEO contact for timeliness purposes.
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0120081399
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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