0120102312
07-13-2011
Darek D. Crenshaw, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Darek D. Crenshaw,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102312
Hearing No. 541-2009-00131X
Agency No. 2003-0785-2008103480
DECISION
On April 20, 2010, Complainant filed an appeal from the Agency’s March
18, 2010, final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence supports the EEOC
Administrative Judge’s conclusion that Complainant failed to demonstrate
that the Agency discriminated against him on the basis of disability
(shoulder injuries and herniated discs at C5-C6) when he received a
letter of counseling and was terminated during his probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Food Service Worker (Cook), NA-6404-04, at the Agency’s Eastern
Colorado Health Care System (ECHCS) in Denver, Colorado. Complainant,
an Army veteran, was appointed to the position in November 2007 and was
subject to a one-year probationary period. The Assistant Chief, Canteen
Service was Complainant’s First Level Supervisor (S1). The Chief,
Canteen Service was Complainant’s Second Level Supervisor (S2).
Letter of Counseling
On February 14, 2008, Complainant suffered an on-the-job injury and
filed a claim with the U.S. Department of Labor’s Office of Worker’s
Compensation Programs. According to a March 3, 2008 Duty Status Report,
Complainant’s medical restrictions required him to sit for eight hours
and lift no more than five to ten pounds intermittently.
On March 10, 2008, S1 issued Complainant a letter of counseling for
failing to follow his medical restrictions. Specifically, S1 cited two
incidents: on March 7, 2008, a Food Leader had to remind Complainant that
he was under restrictions and needed to be in the back and handling the
prep work where he could sit down; on March 10, 2008, Complainant got
up from his chair and carried a bucket of chicken to the refrigerator.
S1 indicated that Complainant’s failure to follow his medical
restrictions was unacceptable.
Notice of Termination
In March 2008, Complainant requested Leave Without Pay (LWOP) from April
2, 2008 to June 9, 2008 to recover from shoulder surgery scheduled for
April 2, 2008. Initially, S1 denied Complainant’s leave request
for staffing reasons. Subsequently, the union contacted management
and explained that Complainant’s disability and need for surgery
arose from an injury sustained while on active duty. In response,
management told the union that it would reconsider the leave request
if Complainant provided documentation to demonstrate that the surgery
was service connected.1 In a March 26, 2008 memorandum, S2 informed
Complainant that the leave request was still denied, but that he would
reconsider it if Complainant provided documentation to demonstrate that
the surgery was service connected.
In a March 28, 2008 memorandum, S2 approved Complainant’s leave
request. Specifically, S2 indicated that he approved the LWOP based on
Complainant’s statement to S1 that the surgery was service connected.
However, S2 also indicated that Complainant was required to provide
documentation by April 16, 2008 showing that the surgery was service
connected and that, if he failed to do so, S2 would have no choice but
to conclude that the surgery was not service connected. According to a
memorandum of record by S2, the following events occurred when he gave
Complainant the March 28, 2008 memorandum: (a) Complainant said “that
there is a misunderstanding, that it was not service connected;”
(b) Complainant said, “I am in the process of making it service
connected;” (c) Complainant went to his vehicle to retrieve some
documents, which mentioned that at one time his appeal was denied and
the appeal time had passed; (d) S2 told Complainant that all along it
was mentioned that the surgery was service connected; and (e) Complainant
told S2 that he was in the process.
On April 2, 2008, Complainant underwent shoulder surgery and was out on
leave until June 2008. On June 2, 2008, S2 issued Complainant a notice
of termination, effective June 18, 2008. S2 stated, “The specific
reason for my decision is based on your action of providing management
with inaccurate information in order to obtain a leave benefit.” S2
additionally stated, “You continued to lead management to believe
that your surgery was service connected in order to obtain approval for
leave until I issued you a memorandum on March 28, 2008 requiring you
to provide me with documentation to support your claim that the surgery
was service connected. At which time you then stated that there was
a misunderstanding and that you were in the process of ‘making it
service connected.’”
In a June 4, 2008 letter to the ECHCS Director, Complainant appealed
the notice of termination and requested reinstatement to the position.
Complainant denied falsifying any information that he provided to S1
or S2. Complainant stated that he told S1 and S2 that he “was in the
process of making this a Service Connected disability by filing it with
the Veterans Administration Disability Board.” Complainant additionally
stated, “In no way did I state that this was not service connected.
If any misunderstanding was involved it was on [S2] and [S1’s] part
… At no time did I tell [S2] that this was not service connected.
This injury did happen while I was on active duty, making it service
connected without a disability rating.”
The record contains a September 27, 2007 letter from the Veterans
Benefits Administration’s Denver Regional Office (VBA)2 to Complainant.
In the letter, the VBA stated that it was working on Complainant’s
application for reopening service connected compensation for a shoulder
injury he suffered while in the Army. In addition, the VBA explained
that Complainant was denied service connection status for his shoulder
injury on May 10, 2004 and that the decision was now final because
the appeal period for that decision had expired. Further, the VBA
stated that Complainant’s claim was previously denied because the
claimed condition was not found to have occurred in nor was caused by
his service. Finally, the VBA stated that it needed new and material
evidence in order to reopen Complainant’s claim.
Formal Complaint and Administrative Judge’s Decision
On June 18, 2008, Complainant contacted an EEO Counselor. On September
22, 2008, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of disability (shoulder injuries
and herniated discs at C5-C6) when:
1. on March 10, 2008, S2 issued him a written letter of counseling
for failing to adhere to his medical restrictions; and
2. on or about June 4, 2008, S2 issued him a written notice of
termination from his probationary position as Food Service Worker,
NA-7404-04, effective June 18, 2008.
On November 10, 2008, the Agency issued a Notice of Acceptance of
Complainant’s complaint. The Notice stated that claim 1 should be
dismissed in accordance with 29 C.F.R. § 1614.107(a)(2) for failure
to adhere to the 45-day time period for contacting an EEO Counselor.
The Notice stated, however, that that the claim was accepted because the
Agency could not certify that Complainant had knowledge of the 45-day
time period. Specifically, the relevant EEO Program Managers verbally
indicated that they were unable to provide evidence of EEO training.
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 and the AJ held a hearing on February 2,
2010,3 and issued a decision on March 9, 2010. 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.
Regarding Complainant’s surgery-related leave request, the AJ found
the following facts: Complainant’s only alternative was to request
LWOP because he did not have enough leave to cover the time he would be
off from work. Complainant submitted a request for the Voluntary Leave
Transfer Program and was ineligible for the Family and Medical Leave
Act because he had not been employed with the Agency for 12 months.
Regarding whether Complainant stated that his shoulder injury was service
connected, the AJ found the following facts: After management denied
Complainant’s leave request, he claimed that the shoulder injury
was service connected. Complainant did not submit documentation to
management, by April 16, 2008 or anytime after, that his shoulder injury
was service connected. Management had discretion to approve or disapprove
LWOP, but was required to grant the request if the employee was a veteran
who requested LWOP for treatment or care of a service connected injury.
If Complainant provided documentation that his shoulder injury was
service connected, management was required to grant his request for LWOP
to have surgery on his shoulder; if he did not provide such documentation,
management could deny his request.
Regarding Complainant’s affidavit and hearing testimony, the AJ
“question[ed] Complainant’s credibility with respect to whether his
shoulder injuries were service connected” and found the following facts:
At the hearing, Complainant testified that he never told management that
his shoulder injury was service connected. On page 11 of his February
25, 2009 affidavit, Complainant attested, “They terminated me because
they say I didn’t show proof that my injury was service connected which
I did. I gave them a report of investigation of line of duty misconduct
status when I first – when they first did the investigation of my
injury.” On page 11-12 of his affidavit, Complainant attested that
he did not know whether the VBA had accepted or denied his request to
designate his shoulder injury as a service connected disability; however,
at this time Complainant knew that the VBA had denied his claim that his
shoulder injury was service connected and that their decision was final.
In his decision, the AJ found that no discrimination occurred because,
among other things, after considering Complainant’s evidence, arguments,
and credibility, he found that Complainant provided insufficient evidence
to bring the Agency’s articulated legitimate, nondiscriminatory
reasons for its actions in question or to show that those reasons
were a pretext to mask intentional discrimination. In particular, the
AJ questioned Complainant’s credibility with respect to whether his
shoulder injury was service connected. The AJ concluded that Complainant
did not establish by a preponderance of the evidence that the Agency
discriminated against him as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit a statement on appeal. In response, the
Agency requested that we affirm its final order. The Agency asserted
that, as Complainant did not submit a statement on appeal, he failed
to show that the AJ made legal errors or that the AJ’s post-hearing
factual findings were not substantially supported by the record.
ANALYSIS AND FINDINGS
Standard of Review
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. Nat’l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.B. (Nov. 9, 1999).
Disparate Treatment
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 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, 441 U.S. at 804
n.14. 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). 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 Ctr. v. Hicks, 509 U.S. 502,
519 (1993). At all times, Complainant retains the burden of persuasion,
and it is his obligation to show by a preponderance of the evidence that
the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Claim 1
Assuming, arguendo, that Complainant established a prima facie case
of discrimination on the basis of disability, we find that the Agency
articulated a legitimate, nondiscriminatory reason for issuing him
a written letter of counseling. Specifically, S1 testified that the
purpose of the March 10, 2008 letter was to inform Complainant that he
was not following his physician’s March 3, 2008 medical restrictions of
lifting five to ten pounds and sitting eight hours a day. In addition,
S1 testified that the letter was based on his personal observation
that Complainant was not adhering to those restrictions and a March 7,
2008 statement from a Food Leader that Complainant was standing instead
of sitting.
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to demonstrate by a
preponderance of the evidence that the Agency’s reasons are a pretext
for discrimination. In an attempt to show pretext, Complainant argued
that he did not violate his lifting restriction because the bucket of
chicken cited in the March 10, 2008 letter of counseling was less than
ten pounds.
The AJ stated that Complainant failed to prove, by a preponderance of the
evidence, that the Agency’s proffered reasons were pretextual. Upon
review, we find that the AJ’s factual finding that no discriminatory
intent existed is supported by substantial evidence in the record.
Regarding the weight of the bucket of chicken, Complainant testified that
he had “a pretty good idea” that it did not weigh more than ten pounds
because he used to lift weights, but admitted that he did not weigh the
bucket of chicken on a scale. In addition, Complainant admitted that he
had violated his sitting restriction because he was supposed to be sitting
the entire time. Accordingly, as to claim 1, we find that substantial
evidence in the record supports the AJ’s finding that the Agency did
not discriminate against Complainant on the basis of disability.
Claim 2
Assuming, arguendo, that Complainant established a prima facie case
of discrimination on the basis of disability, we find that the Agency
articulated a legitimate, nondiscriminatory reason for his termination.
Specifically, S2 attested that he terminated Complainant because
Complainant provided inaccurate information to management in order to
obtain a leave benefit. In addition, S2 attested that Complainant had
stated that his surgery was service connected but never provided any
documentation to that effect.
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to demonstrate by a
preponderance of the evidence that the Agency’s reasons are a pretext
for discrimination. In an attempt to show pretext, Complainant argued
that he never told or implied to management that his shoulder injury was
service connected. In addition, Complainant argued that there was no
evidence that he ever said anything in writing that his injury was service
connected. Further, Complainant argued that management misunderstood
him because he suffered the injury while he was in the service, but
told them all along that it was not service connected and was actually
in the process of making it service connected. Complainant testified,
“Again, I told them it was not service connected. I don’t know
where they kept getting this from, and I kept stating that.”
The AJ stated that Complainant failed to prove, by a preponderance of the
evidence, that the Agency’s proffered reasons were pretextual. Upon
review, we find that the AJ’s factual finding that no discriminatory
intent existed is supported by substantial evidence in the record.
First, the record reflects that Complainant gave inconsistent statements
about whether or not he told management that his surgery was service
connected. Complainant testified at the hearing that he told management
his surgery was not service connected. However, Complainant wrote in
his June 4, 2008 letter to the ECHCS Director, “In no way did I state
that this was not service connected … At no time did I tell [S2] that
this was not service connected. This injury did happen while I was on
active duty, making it service connected without a disability rating.”
In addition, Complainant attested in his affidavit, “They terminated
me because they say I didn’t show proof that my injury was service
connected which I did.”
Second, the record reflects that management approved Complainant’s
LWOP on the basis that the surgery was service connected, Complainant
took the LWOP, and Complainant never provided management with any
documentation demonstrating that it was service connected (as opposed to
being in the process of “making it service connected”). The record
includes testimony by Complainant that he knew his surgery was not service
connected, that he knew that S2’s approval of the leave was conditional
on him providing proof that the injury was service connected, and that
he went ahead and took the leave anyway after he gave management all
the proof that he had. Even if, as argued by Complainant, management
mistakenly thought that he said his surgery was service connected, we
note that Complainant failed to show his termination by management was
intentional discrimination based on his disability.
Accordingly, as to claim 2, we find that substantial evidence in the
record supports the AJ’s finding that the Agency did not discriminate
against Complainant on the basis of disability.
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 adopting the AJ’s 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
___7/13/11_______________
Date
1 At the hearing, a Human Resources Specialist (HRS) testified that a
supervisor generally had discretion, based on mission needs, whether to
approve or disapprove LWOP. However, HRS additionally testified that a
supervisor could not disapprove LWOP if the employee was a veteran who
was seeking treatment or care for a service connected injury.
2 For the purposes of this decision, the term “VBA” is used when
referring to the office processing Complainant’s claim that his
shoulder injury was service connected. The term “Agency” is used
when referring to Complainant’s employer.
3 S2 provided an affidavit but, due to a medical condition, did not
testify at the hearing.
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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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