0120101725
06-29-2012
Homer Ford, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Homer Ford,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101725
Hearing No. 560-2009-00193x
Agency No. 200106232009100721
DECISION
Complainant filed an appeal from the Agency's March 30, 2010 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. 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 Safety Specialist at the Agency's Jack C. Montgomery Veterans Administration Medical Center in Muskogee, Oklahoma.1 Complainant filed an EEO complaint, dated December 26, 2008, alleging that the Agency discriminated against him on the bases of national origin (Native American) and age (over 40 years of age) when:
1. On November 11, 2008, Complainant received a performance appraisal rating of "minimally successful," and he was placed on a Performance Improvement Plan (PIP);
2. On September 9, 2008, Complainant's supervisor, S1, added additional duties to his position as a Safety Specialist;
3. On August 1 and 2, 2008, and during June 2008, S1 questioned Complainant about his intentions regarding his pending retirement, and stated she could get rid of an employee without putting herself in jeopardy;
4. On June 9, 16, and 23, 2008, S1 made offensive comments regarding Complainant's appearance and marital status; and
5. On June 9, 2008, Complainant received a proposed reprimand for negligent performance of duties and conduct unbecoming of a federal employee.2
.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on February 1 and February 2, 2010, and issued a decision on February 5, 2010.
As a preliminary matter, at the outset of the hearing, the AJ affirmed her dismissal of a claim Complainant sought to include with the remaining claims of the instant complaint. Specifically, Complainant alleged that on the bases of age and in reprisal for prior EEO activity, on May 19, 2009, the Agency offered Complainant a settlement arrangement. The AJ found that offers of settlement were not admissible in the instant proceeding and the AJ informed both parties that she would not be addressing the amended claim at the hearing.
In her Decision, the AJ found that Complainant's performance rating for the identified rating period was changed to fully successful on December 15, 2008, by Complainant's supervisor at the time, S1. The AJ noted that the Agency had, however, failed to update Complainant's electronic records to reflect this change. Further, the AJ noted that the numerical ratings that Complainant received were improperly averaged by S1 and that Complainant's numerical average was not less than 1.4 and therefore not less than satisfactory. Moreover, the AJ observed that even though Complainant had received a PIP in November 2008, that no action was ever taken by S1 on the PIP and that S1 left the Agency at the end of December 2008. Neither S1 nor any supervisor conducted any of the weekly meetings proposed in the PIP to help Complainant improve his performance. The AJ concluded that Complainant received a minimally satisfactory rating for his 2008 Performance Plan and that this rating was later changed to fully successful. The AJ also concluded that the PIP Complainant received was never implemented.
With respect to Complainant's harassment claim, the AJ found that Complainant was not the only employee to whom S1 assigned additional duties. (Claim (2)). Rather, the AJ found that the undisputed evidence showed that S1 divided up the duties of a departing employee among several employees.
With respect to claim (3), the AJ found that Complainant had placed a sign regarding his pending retirement upon his office door. The AJ concluded that S1's remark to Complainant about his retirement was that of a supervisor making an inquiry to a supervisee about a subject that the employee had raised.
Regarding claim (4), the AJ considered Complainant's claim that S1 commented to Complainant that he "looked like a store front Indian." The AJ found that S1 had made this comment, that it related to Complainant's protected status as a Native American, and that it is offensive. The AJ also considered Complainant's claim that S1 had commented to another employee about Complainant, "How would you like being married to that guy?" but found that this comment was not directed to Complainant and did not relate to Complainant's membership in any protected group, and was therefore, not discriminatory. The AJ found no evidence to support Complainant's claim that S1 had boasted she knew how to get rid of old employees without getting herself fired. Overall, the AJ concluded that the "store front Indian" comment was an isolated comment and that the comment alone, or in light of the other claims in the complaint, did not rise to the level of harassment.
Regarding claim (5), the AJ found that Complainant had received a notice of proposed reprimand for several performance incidents including back dating the inspection dates for several fire extinguishers that had been previously documented as uninspected. The AJ found that Complainant admitted he had done the identified backdating but explained that it was frequently done. The AJ noted that Complainant failed to present any evidence that others backdated such documents. The AJ also found that Complainant believed the Agency maintained a "five percent" rule that allowed him to miss five percent of the items he was assigned to inspect. The AJ found that Complainant's understanding of the five percent rule was incorrect and that the five percent did not refer to an error rate for Complainant's inspections. Rather, the AJ found that according to S1, the five percent rule was a rule of five percent error allowance per building for extinguishers that actually do not work. Id. at 42, 43. The AJ found that Complainant's conduct and performance warranted the rating he received from S1 and also served as the basis of discipline she proposed. The AJ further noted that the proposed reprimand had been reduced to a letter of counseling. The AJ concluded that Complainant failed to identify any other employees, not in his protected groups, who were not similarly disciplined under similar circumstances.
The AJ concluded that Complainant failed to show that he was discriminated against based on his national origin or age3 as set forth in claims (1) through (5), and failed to show that he was subjected to a hostile work environment based on his age or national origin as alleged. The Agency subsequently issued a Final Order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant contends that had the AJ elected to consider Complainant's evidence regarding the settlement terms offered by the Agency, Complainant would have been able to demonstrate the Agency's desire to force Complainant to retire within three days of the date of the settlement conference.
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).
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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. 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 pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
As a preliminary matter, we find the AJ properly refused to consider and/or address the terms and conditions presented to Complainant during settlement discussions and that such evidence cannot be made the subject of an EEO complaint nor offered as evidence to support other claims. Settlement negotiations, including any statements or proposals, are to be treated as confidential and privileged to facilitate a candid interchange to settle disputes informally. Harris v. Department of the Navy, EEOC Request No. 05941002 (March 23, 1995).
In the instant case, we find that the AJ's Decision is supported by substantial evidence and we find no basis to disturb the AJ's finding that no discrimination occurred as alleged. Specifically, we note, as did the AJ, the evidence shows that Complainant's performance rating for fiscal year 2008 was ultimately changed by S1 to fully successful. Hearing Transcript (Hr'g Tr), February 1, 2010 at 62, et seq. We find that Complainant further admits that the PIP related to the lower performance rating was never implemented. Id. at 98. We find no evidence that the Agency's failure to document this change in Complainant's electronic personnel records was the result of discrimination.
We concur with the AJ that the isolated remark identified in the complaint when S1 compared Complainant to a "store front Indian" directed at Complainant in the presence of co-workers, by itself, does not rise to the level of harassment. We consider the statement of E1, Complainant's co-worker, to whom S1 remarked, "How would you like to be married to that guy?" We find the evidence supports the AJ's finding that S1's comments were to E1 and not to Complainant and that the remark was not related to or motivated by Complainant's national origin or his age. We concur with the AJ that the evidence shows that Complainant advertised his pending retirement to others in his workplace and that S1's inquiry regarding his retirement plans were more likely than not prompted by Complainant's own actions.
We find, as did the AJ, that the proposed reprimand was reduced to a letter of counseling and that Complainant admitted to the more egregious conduct described in the discipline. We find no evidence that Complainant's age or national origin motivated S1's decision to issue discipline concerning Complainant's conduct or performance where Complainant had failed to inspect several fire extinguishers and later falsified the inspection documents in a claimed attempt to help the Agency pass a scheduled accreditation inspection. We find no evidence that other employees, not in Complainant's protected groups, had acted similarly under the same circumstances, without also finding themselves subject to similar discipline.
Even if we consider Complainant's complaint to also be based on race, we reach the same finding of no discrimination for that basis. We find that the only discriminatory incident was the one offensive remark which we find that by itself does not constitute a hostile work environment.
CONCLUSION
We AFFIRM the Agency's Final Order.
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
June 29, 2012
__________________
Date
1 The record indicates that Complainant retired from the Agency effective November 1, 2009.
2 Complainant alleged that claims (2) through (5) are incidents of a hostile work environment together with claim (1). The Agency also analyzed claim (1) as a discrete personnel action.
3 The AJ noted that Complainant alleged discrimination based on national origin (Native American) and that the Commission regards Native American as a race. The AJ analyzed Complainant's complaint based on race/national origin (Native American).
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0120101725
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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