0120092341
06-10-2010
Ibrahim X. Johnson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Ibrahim X. Johnson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092341
Agency No. 200I05082008101916
DECISION
On May 4, 2009, complainant filed an appeal from the agency's March 23,
2009 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Program Support Assistant, GS-6, at the agency's Veterans Affairs
Medical Center facility in Decatur, Georgia.
On June 7, 2008, complainant filed an EEO complaint alleging that he was
discriminated against and subjected to harassment on the bases of sex
(male) and in reprisal for prior protected EEO activity under Title VII
when:
1. On February 25, 2008, complainant received a written counseling from
his supervisor; and
2. On May 13, 2008, complainant learned that he was not selected for
the position of Lead Program Support Assistant.
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
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).
Complainant alleges that he was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) he is a member of a
statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Upon review, we find that the agency correctly found that complainant
had not demonstrated that he was subjected to discrimination or
harassment based on his race or in reprisal for prior protected EEO
activity. The Commission finds that the agency articulated legitimate
nondiscriminatory reasons for its actions. Specifically, with respect
to issue 1, the agency noted that complainant was issued the written
counseling from his supervisor, the Clinical Operations Manager (COM),
because he failed to render assistance to a patient who arrived at
complainant's unit complaining of shortness of breath and chest pain.
The COM noted that although complainant's tour of duty does not
start until 7:00 a.m., complainant was at his work station at 6:45
a.m. on the date in question when he was approached by the patient.
The COM stated complainant referred the patient to the emergency room
and otherwise failed to assist the patient. The COM noted that the
patient was not seen in the emergency room, returned to complainant's
unit upset and reported complainant to customer service. The COM noted
that the patient's complaint was logged into the Director's Office.
The COM noted that she had never had prior problems with complainant
but stated given the seriousness of the situation, she felt compelled
to issue the written counseling. Complainant failed to show that the
agency's actions were based on discriminatory animus.
With respect to issue 2, the COM noted that as the selecting official,
she chose the selectee who she found was significantly more qualified for
the Lead position than complainant. The selecting official noted that
the Lead was the right hand person to the Clinical Operations Manager.
The selecting official stated that the selectee had worked in the service
line for over ten years, in various areas, and frequently had served in
an acting capacity for the predecessor of the Lead position when he was
gone. The selecting official noted that at the time of the selection,
complainant had worked under her for about six months. The selecting
official explained that the Lead position required exceptional customer
service and noted that complainant had received previous complaints
from patients. Additionally, the selecting official stated that the
selectee was always professional and had excellent customer service.
Complainant failed to show that his qualifications were plainly superior
to the selectee. Moreover, we find that complainant failed to show the
agency's actions were a pretext for prohibited discrimination.
Accordingly, the agency's final decision finding no discrimination is
AFFIRMED.
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 10, 2010
__________________
Date
2
0120092341
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092341