0120113078
11-14-2012
Frank P. Brady, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Frank P. Brady,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113078
Hearing No. 430-2010-00037X
Agency No. 2004-0637-2009102315
DECISION
On June 10, 2011, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's May 10, 2011, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency's Charles George Veterans Affairs Medical Center (VAMC) in Asheville, North Carolina.
On May 8, 2009, Complainant filed an EEO complaint, as amended, alleging that he was subject to disparate treatment discrimination based on his age (41 and 42) and reprisal for prior protected EEO activity under the ADEA, Title VII, and the Rehabilitation Act when various events occurred, including not being selected for the position of Security Specialist (Captain), vacancy announcement 09-02; being denied the opportunity in May 2009 to apply for a second vacant Supervisory Police Officer (Sergeant) job; in September 2009 he was directed to take administrative leave (until his next scheduled day), his police authority was suspended, he was detailed to an administrative position, he was directed to take a fitness for duty exam, he received a proposed suspension for 14 days which was sustained in November 2009, and after being detailed he was not restored to his position with police authority until about January 2010.
Complainant also alleged that he was discriminated against and harassed on the above bases from October 2008 to about January 2010 when various incidents occurred, including the above events; when the VAMC Director threatened to fire him if he did not participate in mediation and later a new Chief inferred his behavior was negative and he could be fired if he did not conform; the VAMC Director told him he needed to stop trying to report on his co-workers because they felt like they could not trust him; the Associate Chief Nurse told him he was a problem and yelled at him to do his job and on another occasion falsely reported he was loudly argumentative; management in various ways did not properly address his complaint about the Associate Chief Nurse; management told him he could not wear his AFGE steward identification tag on his police uniform; after he questioned the Chief about not being selected for the Captain position, the Chief yelled "You're a liar, stop lying, get out of my office now, get out you liar"; his schedule was short seven hours once and this was not properly handled; and he overheard a conversation between the Privacy Officer and a Sergeant where false and derogatory things were said about him.1
Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). After the hearing the AJ issued a decision finding no discrimination, which Agency fully implemented in its final order.
Regarding the Captain position, the AJ found that Complainant was not selected because a merit panel rated the selectee higher on the merits and most of the panel members stated the selectee interviewed better, and Complainant did not show his qualifications were such as to create an inference of discrimination.2 On the Sergeant job the AJ credited the selecting official's testimony that he decided to make two selections from a Sergeant vacancy announcement Complainant did not apply for, rather than separately announce the second Sergeant slot as originally planned because as the Assistant Police Chief he desperately needed the assistance that would come from promptly filling both slots.
Based on evidence in the record, the AJ found that Complainant's police authority was suspended, he was detailed to an administrative position, and he was directed to take a fitness for duty examination based on his behavior on the morning of September 15, 2009.3 The AJ credited the Assistant Police Chief's testimony describing Complainant's behavior that morning as being enraged with spittle coming out of his mouth, red in the face, teary eyes, and repeatedly saying he could not deal with the stress anymore. The AJ credited the Police Chief's testimony that there was a delay in returning Complainant to his position after he passed the fitness for duty examination because there was a delay in Human Resources notifying him that the examination was completed and re-qualifying Complainant to carry a fire arm. In finding the suspension was not discriminatory the AJ credited the Police Chief's testimony that the catalyst for the suspension was Complainant's refusal to leave the facility after being placed on administrative leave and being told to leave, which was a continuation of his misconduct problems, not discrimination.
On the harassment claim the AJ found that Complainant's own behavior was often the catalyst for many of the alleged incidents, e.g., his inordinate e-mail communication to his supervisors and managers that were at best disrespectful and at worst insubordinate, and testing the authority of his managers and supervisors, and none of the alleged harassment was because of his age or EEO activity. The AJ credited the VAMC Director's testimony that she did not threaten to fire Complainant and advised him about the results of a workplace assessment so he could change his behavior when she told him his colleagues were uncomfortable with his taking notes of their conversations. Regarding the alleged Police Chief inferring to Complainant that he could be fired for his negative behavior the AJ credited the Police Chief's testimony to the effect that he was not talking about Complainant's behavior and did not try to intimidate him.
Regarding the actions of the Associate Chief Nurse, the AJ found that she credibly testified she was not aware of Complainant's age or prior EEO activity and reported Complainant's actions to the union because he was acting in an intimidating manner during a meeting where he was serving as a steward. The AJ also found that the Agency tried to address Complainant's concerns about the Associate Chief Nurse in that several attempts were made to schedule a meeting between them, but it did not occur due to repeated scheduling conflicts.
The AJ found that management told Complainant not to wear his union steward badge on his police uniform because this was against Agency uniform policy. The AJ found that the Police Chief was not motivated by discrimination when he allegedly told Complainant he was a liar and to get out of his office. The Police Chief stated that after Complainant was venting to him about the selection process and other complaints for seven to nine minutes, he asked Complainant to leave but he stayed and continued venting. The Police Chief stated he then had to use his command voice to tell Complainant to leave, and had to ask him to do so three times before he complied. The Police Chief stated that at this time Complainant made him uneasy, and denied calling him a liar.
The AJ credited the Sergeant's (Complainant's first line supervisor) statement that in his conversation with the Privacy Officer he complained about Complainant's emails and said that he said he hoped Complainant's EEO hearing would resolve his issues. The AJ found that although the Sergeant mentioned Complainant's EEO activity, he was complaining about Complainant's emails, not his EEO activity.
The AJ found Complainant was shorted seven hours due to a mistake, and it was corrected.
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, at � VI.B. (November 9, 1999).
On appeal, Complainant argues that the AJ did not properly weigh the evidence. We find that there is substantial evidence to support the AJ's finding of no discrimination. The Agency's final action fully implementing the AJ's decision finding no discrimination is AFFIRMED.
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
November 14, 2012
__________________
Date
1 Not every incident of alleged harassment is summarized here, but most are, including the salient ones.
2 On various issues the AJ found that Complainant did not make out a prima facie case of age and/or reprisal discrimination. Where the Agency gave legitimate, nondiscriminatory reasons for what occurred, which were credited by the AJ, we need not discuss whether prima facie cases were established. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
3 This was also the stated reason he was placed on administrative leave.
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0120113078
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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