0120080460
06-09-2010
Edward B. Hernandez, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Edward B. Hernandez,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120080460
Hearing No. 451200700089X
Agency No. ARFTSAM06FEB00570
DECISION
On October 26, 2007, complainant filed an appeal from the agency's
September 25, 2007 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 deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
ISSUE PRESENTED
Whether substantial evidence supports the AJ's determination that
complainant was not subjected to discrimination on the bases of national
origin, sex, disability, and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Maintenance Worker at the agency's Business Operations Division (BOD),
Lodging Branch in Fort Sam Houston, Texas. In this capacity, complainant
was under the supervision of the Hotel Assistant Manager (first-level
supervisor (S1)), the Housing Manager (second-level supervisor (S2)),
and the BOD Division Chief (third-level supervisor (S3)).
The record reflects that S3 issued complainant a notice of proposed
separation on February 23, 2006. The notice charged complainant with
inappropriate behavior in the workplace; damaging government property;
insubordination; displaying an inappropriate picture in the workplace; and
being absence without leave (AWOL). On May 4, 2006, the agency notified
complainant that he would be separated from his position effective May 8,
2006.
On June 20, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (Hispanic),1 national
origin (Hispanic) sex (male), disability (back), and reprisal for prior
protected EEO activity2 when:
1. He was separated from the agency on May 4, 2006;
2. Since March 2003, management applied different standards (disparate
treatment) for addressing workplace issues or absences for white or
female employees; and
3. He was subjected to ongoing harassment since March 2003 that consisted
of threats from S1 and statements such as: "you think you've won when you
were reinstated to your job through a negotiated settlement agreement?"
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). Following a hearing,
the AJ issued a Bench Decision on July 26, 2007. 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.
AJ's DECISION
The AJ found that assuming arguendo complainant was a qualified
individual with a disability and had presented prima facie claims of race,
national origin, sex, and reprisal discrimination, the agency provided
legitimate, nondiscriminatory reasons for its actions. Specifically,
the AJ noted management's contention that complainant had engaged in
unprofessional and insubordinate behavior, to include threatening
a supervisor and a coworker. To this extent, the AJ took note of
complainant's demeanor during the hearing, noting that he had a
"sharp edge" to his personality. The AJ also noted that complainant,
as based on his comments to the AJ during the course of the hearing,
did not hesitate to "fire back at someone in authority." Accordingly,
based on complainant's demeanor during the hearing along with witness
and management testimony, the AJ determined that the agency had provided
legitimate, nondiscriminatory reasons for its actions, which complainant
failed to show were a pretext for discrimination. Accordingly, the AJ
found that complainant could not establish that the agency discriminated
against him on any of his alleged bases.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates that he is an individual with a
disability. Complainant further reiterates that he was separated from
the agency because of injuries he sustained while working. Finally,
he asserts that S1 subjected him to harassment.
On appeal, the agency argues that the AJ properly found that complainant
failed to show that he was discriminated against on the bases of sex,
national origin, race, disability, or in reprisal for prior protected
EEO activity. Accordingly, the agency requests that the Commission uphold
the agency's Final Order implementing the AJ's decision.
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).
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). He
must generally 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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). 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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Disparate Treatment - National Origin, Sex, Disability, and Reprisal
Assuming arguendo that complainant established prima facie cases
of national origin, sex, disability, and reprisal discrimination,
we nonetheless find that the agency articulated legitimate,
non-discriminatory reasons for its actions.
Claim (1)
Management testified that complainant was issued a notice of separation
on the grounds that he had: (1) engaged in inappropriate behavior in the
workplace; (2) damaged government property; (3) acted in an insubordinate
manner; (4) displayed an inappropriate picture in the workplace; and
(5) was absence without leave (AWOL). With respect to the first charge,
management and witnesses testified that complainant confronted a female
supervisor in a hostile manner. This testimony reflects that complainant
verbally assailed and held/shook a radio in a menacing manner at the
supervisor, who testified that she feared bodily harm. Management further
testified that complainant was accused of engaging in a second incident
of hostile behavior when he confronted a coworker in a threatening
manner. The coworker also testified that he felt physically threatened.
With respect to the second charge of damaging government property,
management testified that complainant, without authorization, installed
a deadbolt on a door for a second floor room in a historic building that
was eligible for protection under the National Historic Preservation
Act of 1996. Management also testified that complainant had, also
without authorization, moved a microwave and refrigerator into the room.
With respect to the third charge, management testified that despite
multiple requests for him to remove the respective items from the room,
complainant failed to comply. Accordingly, management charged him with
insubordination. Under a subsequent charge of insubordination, management
testified that complainant failed to obey management directives on October
15, 2005 to relocate an emergency eyewash station to the outside of a
basement storeroom.
Under the fourth charge, management accused complainant of displaying a
sexually suggestive picture of a woman on the wall of a second floor room,
which could clearly be seen by guests and employees as they walked down
the hallway. Finally, under the fifth charge, management testified that
complainant was AWOL on November 4, 2005. S1 testified that complainant
stated that he was going to take his personal items and return home. S1
testified that he informed complainant that he was not authorized to
return home. Despite his instructions, S1 testified that he later learned
that complainant had left the work site.
S2 testified that she originally proposed suspending complainant, but
she elected separation following complainant's threatening behavior
as directed towards a female supervisor and a male coworker. S2 also
testified that Human Resources had advised management to continue C-1's
employment while he was being treated at a Veteran's Administration
hospital. Finally, S3 testified that before the Notice of Proposed
Separation was issued, she interviewed all of the involved participants,
and supplemented her investigation with written statements. S3 testified
that she determined that separation was warranted because of complainant's
accumulated record of misconduct.
Because the agency provided legitimate, nondiscriminatory reasons for
its actions, the burden shifts to complainant to show that these reasons
are a pretext for discrimination. Complainant avers that management's
first charge with respect to his allegedly violent, hostile behavior
is a lie. With respect to the second charge, complainant contends that
S1 requested that he install the deadbolt. Complainant also contends
that he moved the microwave and refrigerator from the basement to
the second-floor room, because there were rats and water leakage in
the basement. With respect to the third charge, complainant asserts
that he did not fail to comply with management's requests to relocate
the eyewash station. As to the fourth charge, complainant opines that
the picture was not inappropriate. Finally, with respect to the fifth
charge, complainant contends that he informed S1 that he was in pain and
needed to leave work. Complainant asserts that management's actions
towards him were motivated by his "refusing to kiss up." Complainant
further testified that he "does not know if he was treated differently
from other employees, but he is certain that he was not afforded due
process or protection under applicable regulations.
Based on a careful review of the record, we find that substantial
evidence in the record supports the AJ's determination that complainant
failed to show that the agency discriminated against him based on his
protected classes.
Claim (2)
S1 testified that he never denied complainant's requests for sick
leave or questioned why he had to take leave. According to S1, on one
occasion he inquired as to why it took complainant four hours to get a
form signed, to which complainant responded that he had car troubles.
S1 further testified that he did not treat complainant's coworkers more
favorably. Specifically, S1 testified that he did not treat a Caucasian,
male comparator (C-1) more favorably than complainant. S1 testified
that C-1 did not have conduct issues and he had stopped working two
years earlier so that he could receive medical treatment for cancer.
Finally, S1 testified that all of C-1's absences were approved.
The Commission concurs with the AJ's finding that, with respect to claim
(2), complainant failed to proffer evidence establishing that the agency's
articulated reasons for its actions were more likely than not a pretext
for discrimination. We find that substantial evidence supports the AJ's
determination.
Claim (3) - Harassment
To the extent that complainant also alleges that he was subject to
a hostile work environment with respect to the matters set forth in
his complaint, we find that under the standards set forth in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's claim of
hostile work environment must fail. See Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
A finding of a hostile work environment is precluded by our determination
that complainant failed to establish that any of the actions taken by
the agency were motivated by discriminatory animus. See Oakley v. United
States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a careful review of the record, the Commission concurs with the
AJ's finding that complainant failed to proffer evidence establishing
that the agency's articulated reasons for its actions were more likely
than not a pretext for discrimination. We AFFIRM the agency's Final
Order adopting the AJ's determination that complainant was not subjected
to unlawful discrimination 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
___06/09/10_______________
Date
1 The Commission consider the term "Hispanic" to be an indication of
national origin, not of race.
2The record indicates that complainant engaged in prior protected EEO
activity when complainant filed a complaint of discrimination on an
unspecified date in 2003. The record indicates that this complaint was
resolved when the agency reached a negotiated settlement agreement with
complainant on November 18, 2003.
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0120080460
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080460