0120070570
02-20-2009
David J. Barajas, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
David J. Barajas,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070570
Hearing No. 370200500398X
Agency No. 200N06122004100741
DECISION
On November 6, 2006, complainant filed an appeal from the agency's
October 4, 2006 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 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 Program Support Assistant at the Mather, California Outpatient Clinic,
which is part of the VA Northern California Health Care System.1
On January 8, 2004, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (Hispanic), national origin
(Mexican), disability (physical), and in reprisal for prior protected
EEO activity when:
1. on October 15, 2003, the Chief of Police and Security (the Chief),
failed to take a police report or any other action when complainant
reported he had received a threatening telephone call at his home;
2. the Chief assigned Police Office 1 (PO1) to the clinic where
complainant worked;
3. from October 2003 through November 2003, the Nurse, Employee
Health Management, accessed complainant's medical records without his
authorization;
4. from October 2003 through November 2003, the Chief excluded
complainant from the investigation into complainant's allegation that
PO1 had threatened complainant, and he had the investigation conducted
by an individual from Reno, Nevada;
5. in October 2003, complainant was subjected to a biased
psychological examination;
6. from October 2003 until November 2003, the EEO Program Manager
refused/failed to forward communications;
7. from December 4, 2003 until January 8, 2004, the Acting Director
and the Associate Director refused to respond to complainant's e-mail
regarding criminal activity within the medical center;
8. on January 9, 2004, the Chief made defamatory statements
concerning complainant;
9. on January 9, 2004, the Chief required complainant to check in
and give advance warning before arriving at the Martinez facility;
10. on February 6, 2004, a supervisor counseled complainant for
accessing internet sites and for arriving late;
11. on March 22, 2004, complainant learned that the Chief told the
Police Office 2 (PO2) that complainant was the reason PO2 received a
Letter of Counseling and the Chief referred to complainant as "a snitch
and a rat";
12. on April 1, 2004, the supervisor denied complainant's request
for two days off to work on his EEO complaint;
13. in November 2004, management advised complainant not to use the
internet, telephone or fax machine, and continuously monitored his breaks
and lunch; and
14. on November 16, 2004, complainant was issued a written
counseling.
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, which was held December 6, 7, 8, and 21, 2005;
twenty-two witnesses testified. The AJ issued a decision on September
19, 2006, finding no discrimination. The agency subsequently issued a
final order fully implementing the AJ's decision.
In his decision, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for its actions, and that complainant failed
to present sufficient evidence of pretext. The AJ found that several of
complainant's claims presented the same claims that had been addressed
in prior decisions. Further, the AJ found that even if the complaint
was considered as a claim of harassment, complainant failed to present
sufficient evidence that would establish he was subjected to a hostile
work environment.
CONTENTIONS ON APPEAL
On appeal, complainant essentially restates his arguments surrounding
the agency's inappropriate access to his veteran's medical records, and
the agency's failure to conduct an appropriate psychological examination.
He also claims the agency violated the Privacy Act.
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, � VI.B. (November 9, 1999).
As an initial matter we find that issues 3 and 5 deal with issues
raised and adjudicated in prior decisions. The regulation set forth
at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss
a complaint that states the same claim that is pending before or has
been decided by the agency or Commission. Further, issue 8 deals with
complainant's claim that he was defamed during the processing of this
complaint. We find this claim does not state a claim upon which relief
can be granted. Accordingly, issues 3, 5, and 8 are dismissed.
Issue 12 deals with a denial of official time. EEOC Regulation 29
C.F.R. � 1614.605(b) provides, in relevant part, that complainant
"shall have a reasonable amount of official time, if otherwise on duty,
to prepare the complaint and respond to agency and EEOC requests for
information." On April 1, 2004, complainant requested two days off to
work on his EEO complaint, and his supervisor denied the time because of
staffing needs. Complainant again spoke with his supervisor, and then
the supervisor agreed to give complainant four hours of official time.
We find this was not an unreasonable amount of time, and find that
complainant failed to establish he was denied a reasonable amount of
official time.
As for his remaining claims, we find that there is substantial evidence in
the record to support the AJ's findings of no discrimination. Assuming,
arguendo that complainant is an individual with a disability, we find the
agency articulated legitimate, nondiscriminatory reasons for its actions,
and that complainant failed to produce sufficiently persuasive evidence
that would establish pretext. Complainant presented insufficient evidence
that the Chief, or any other named official, harbored discriminatory or
retaliatory animus against complainant. Although complainant claimed that
PO1 threatened him, the matter was dealt with by local police officials.
Once complainant complained about PO1 working at his facility, PO1
was transferred to another facility. Complainant failed to present
evidence of individuals treated more favorably than he was when their
supervisor learned of their internet use. Complainant also failed
to produce evidence that some of the incidents occurred as alleged.
For instance, complainant failed to produce sufficient evidence as to
who called him "a snitch and a rat." We further agree with the AJ's
findings that, considering complainant's claim as one alleging a hostile
work environment, complainant failed to present sufficient evidence of
harassment that was based on his race, national origin, disability,
or prior protected activity. Complainant's contentions on appeal
deal largely with matters raised and adjudicated in prior appeals,
or regard matters that are not within the Commission's jurisdiction,
and will therefore not be addressed in this decision.
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.
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
February 20, 2009
Date
1 The record reveals that prior to the events in question, complainant
worked for the agency as a Police Officer. In 2003, the agency
decided to arm police officers. As a result, all police officers
were required to undergo psychological evaluations to determine if
they could carry a firearm. Complainant maintained that the agency
inappropriately accessed his veteran's medical record during this time.
The record reveals that following the evaluation, complainant was not
permitted to carry a firearm. As a result, complainant was reassigned
to another position, and on April 4, 2003, filed a formal complaint,
Agency No. 200N-0612-2003101828. The agency issued a final decision
finding no discrimination, and complainant appealed the matter to the
Office of Federal Operations. In its decision, the Commission found no
discrimination. See David Barajas v. Department of Veteran's Affairs,
EEOC Appeal No, 01A44280 (August 9, 2006), recon. denied, Request
No. 0520070005 (November 29, 2006).
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0120070570
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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