0120160613
02-22-2018
Esteban S.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Esteban S.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160613
Agency No. 200J-06952015100816
DECISION
On November 23, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 29, 2015 final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aide at an Agency medical center in Milwaukee, Wisconsin. On February 27, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against and harassed him based on reprisal for prior protected EEO activity (EEO complaints filed between 2009 and 2015) when:
1. on October 7, 2014, the Housekeeping Supervisor (S1) issued Complainant an admonishment, and
2. throughout his eight years of employment with the Agency, including January 7, 2015 through February 21, 2015, it failed to convert Complainant to a first shift, full-time employment position.
Subsequently, Complainant also alleged (3) an EEO Counselor failed to communicate with him adequately through the EEO complaint process and the Agency framed his claims improperly.
The Agency dismissed Complainant's allegation of dissatisfaction with EEO processing, pursuant to 29 C.F.R. � 1614.107(a)(8). The Agency stated that it referred Complainant to the Agency official responsible for complaint processing for response. Further, the Agency dismissed Complainant's claim of discriminatory harassment pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency stated that the incidents alleged do not rise to the level of a hostile work environment. The Agency rendered a decision on the merits for disparate treatment for (1) and (2) solely.
In a letter dated July 16, 2015, the Agency Policy and Compliance Manager (P1) responded to Complainant's dissatisfaction with EEO processing. P1 added the response to the instant underlying complaint record.
Investigation
In a letter dated August 3, 2015, Complainant stated that he would not provide an investigative affidavit because he disagrees with how the Agency framed his claims. Also, S1 did not provide an investigative affidavit as he resigned from the Agency in April 2015.
During the EEO investigation, the Environmental Services Chief (S2) stated that management determined an admonishment was appropriate based on the Agency's table of penalties, the Merit System Protection Board's Douglas factors, and Complainant's prior discipline. S2 stated that management consulted with Human Resources (HR) prior to issuing the admonishment. S2 stated, at one time, Complainant had to be escorted by police whenever he went to the main building of the hospital because some female staff said he was intimidating them. S2 stated that Complainant's involvement with staff at the hospital was less than desirable. S2 stated that Complainant frequently told him that he had a contentious relationship with past management so he ensured Complainant that he would not hold the past against him and he would not tolerate anyone discriminating in his department. S2 stated that Complainant told him of his prior EEO activity.
S2 stated that he was not aware Complainant requested a full-time position on the first shift. The Assistant Environmental Services Manager (S3) also stated that he was unaware of a written request for conversion. S3 stated that when an employee submits a written request for conversion, management considers customer service, job proficiency, attendance, and other factors. S3 stated that he has received feedback that Complainant requires constant monitoring when given assignments, is idle at times, and is willfully wasteful. A General Foreman stated that he offered Complainant a position on the third shift, but he declined it stating that he would await a spot on the first shift.
The record contains a letter, dated October 7, 2014, admonishing Complainant for sleeping while on duty on August 10, 2014. It also contains a letter dated January 7, 2015 in which Complainant stated that he was again requesting, this time in writing, a full-time first shift Housekeeping position.
Post-Investigation
Following the EEO investigation, the Agency informed Complainant of the right to request a hearing before an EEOC Administrative Judge or an immediate final decision. On August 31, 2015, Complainant requested a final agency decision. The Agency issued a decision finding no discrimination. The instant appeal from Complainant followed. Complainant provided statements about his various EEO complaints.
ANALYSIS AND FINDINGS
We find that the Agency's articulation of Complainant's claims is consistent with Complainant's submissions and the record overall. As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The prima facie inquiry may be dispensed with where the Agency articulated legitimate and non-discriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See 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 a pretext for discrimination. 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); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on reprisal, and the Agency articulated legitimate, nondiscriminatory reasons for issuing Complainant a letter of admonishment and not converting Complainant to a full-time position on the first shift. The record reveals that the Agency cited sleeping on the job as the reason for issuing Complainant an admonishment. The Environmental Services Chief, S2, stated that management determined an admonishment was appropriate based on the Agency's table of penalties, Douglas factors, and Complainant's prior discipline. Further, he stated that management consulted with HR prior to issuing the admonishment. S2 was aware of Complainant's prior EEO activity.
The record contains a January 2015 letter wherein Complainant requested conversion to a full-time, first shift Housekeeping position. S2 and S3 stated that they were not aware Complainant requested said position. Notwithstanding, S3 stated that when an employee submits a written request for conversion, management considers customer service, job proficiency, attendance, and other factors. S3 stated that he has received feedback that Complainant requires constant monitoring when given assignments, is idle at times, and is willfully wasteful. Another manager stated that he offered Complainant a position on the third shift, but he declined it stating that he would await a spot on the first shift.
Complainant has presented insufficient evidence to establish, by a preponderance of the evidence, that the Agency's articulated reasons are pretextual, or that his prior EEO activity actually played a role in the agency's decision-making process. Further, assuming the incidents Complainant alleged rose to the level of a hostile work environment, Complainant failed to show that the actions were related to his prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 22, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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