0120072558
06-25-2009
Harris Parr, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Harris Parr,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072558
Hearing No. 520200600349X
Agency No. 200H06202005103398
DECISION
On May 5, 2007, complainant filed an appeal from the agency's April
26, 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. 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 Nurse Manager at the agency's FDR Health Care System facility in
Montrose, New York. The record reveals complainant engaged in prior EEO
activity in 2002 when he filed an EEO complaint. Complainant ultimately
withdrew the complaint when he agreed to a settlement agreement.
On October 31, 2005, complainant filed an EEO complaint alleging that he
was discriminated against in reprisal for prior protected EEO activity
when:
1. on July 5, 2005, during the course of a meeting, the Chief of
the Mental Health Care Line fabricated a noose and tossed it on a table
in front of him;
2. on August 4, 2005, a co-worker pointed to complainant's briefcase
and yelled, "[t]here is a bomb in his briefcase"; and
3. on August 2, 2005, a co-worker insinuated, in front of other
co-workers, that complainant was taking "Olanzapine" (an anti-psychotic
medication).
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 March 19, 2007. The AJ thereafter
issued a decision in favor of the agency on April 17, 2007.
In his decision, the AJ found complainant failed to prove the incident
with the noose occurred as alleged. Specifically, the AJ found that
during a July 5, 2005 staff meeting, participants discussed whether
decorative coiling on handrails could be removed easily, thereby
creating a safety threat for its psychiatric patients. Complainant
alleged that his supervisor took the coiling, shaped it into a noose,
and threw it on the table towards complainant, who was seated next to an
African-American Nurse under his supervision. According to complainant,
this was an act of retaliation. However, the witnesses to the incident
testified that the supervisor did not create a noose out of the coiling.
Furthermore, the AJ noted that the nurse neither made an allegation of
race discrimination, nor did she file a complaint of discrimination in
response to the incident. The AJ also found no causal connection between
complainant's prior EEO activity and the subsequent alleged harassment.
The AJ did note however, that after complainant initiated a complaint
about the incident, the agency conducted an investigation into the matter,
and found no corroboration of complainant's allegations.
As for the second two incidents, complainant alleged that a co-worker
(CW1) announced in the presence of veterans that complainant had a bomb
in his briefcase. Complainant also alleged that CW1 publicly accused
complainant of taking anti-psychotic medications. The AJ found, however,
the CW1 was not aware of complainant's prior EEO activity. Further,
although complainant alleged that complainant's supervisor directed CW1 to
make these statements, the AJ found no evidence to support this theory.
Accordingly, the AJ found no prima facie case of reprisal because there
was no knowledge of complainant's prior EEO activity, and no causation.
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.
CONTENTIONS ON APPEAL
On appeal, complainant submitted a copy of a letter from complainant's
former attorney to the AJ assigned to the case. Therein, complainant,
through counsel, contended that the AJ made several misstatements of fact
in his decision. On appeal, the agency disputes that the AJ made any
errors, and contends that if errors were made, they were not material
to the outcome.
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).
After a review of the record, we find there is substantial evidence
in the record to support the AJ's finding that complainant was not
subjected to retaliation. Complainant failed to present sufficiently
persuasive evidence that his supervisor created a noose out of coil
and threw it in his direction as a means of retaliating against him.
Moreover, the agency conducted a prompt investigation into the incident.
Complainant failed to raise an inference of reprisal with respect to the
remaining issues because he failed to establish that CW1 was aware of
his prior EEO activity at the time he allegedly made the statements.
We also find no evidence to support complainant's theory that his
supervisor directed CW1 to make the accusations. Finally, we do not
find support for complainant's contentions on appeal that the AJ made
material mistakes of fact.
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
June 25, 2009
Date
2
0120072558
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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