Isaac P. Decatur, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 9, 2009
0120083021 (E.E.O.C. Sep. 9, 2009)

0120083021

09-09-2009

Isaac P. Decatur, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Isaac P. Decatur,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120083021

Hearing No. 430-2007-00346X

Agency No. 200405582007100543

DECISION

On June 27, 2008, complainant filed an appeal from the agency's June 5,

2008 final order (FAO) 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 deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final order.

ISSUE PRESENTED

Whether the Administrative Judge's finding after a hearing, that

complainant was not subjected to unlawful retaliation, is supported by

substantial evidence in the record.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Housekeeping Aid Supervisor, WS-2/5, in the Environmental Management

Services, Durham, North Carolina. On December 27, 2006, complainant filed

an EEO complaint alleging that he was discriminated against on the basis

of reprisal for prior protected EEO activity [arising under Title VII]

when1:

a. On July 7, 2006, he was threatened by his supervisor, the Chief of

Housekeeping (CH);2

b. From October 26-31, 2006, he performed double duty (supervisor

and employee assignments) and, supervisor/employee confidentiality

was breached (namely, his supervisor addressed an email to himself and

another employee that should have only been directed to him, discussing

CH's dissatisfaction with the work performed on the flooring around a

vending machine);

c. On October 27, 2006, he was not given the option of using different

types of leave when he is absent from work like his fellow co-workers;3

d. On November 8, 2006, CH conducted an inspection and complainant was

given seven days to correct a list of discrepancies;

e. On November 13, 2006, he was given a letter of counseling regarding

his leave usage;

f. In November 2006, his requests for sick leave were denied and he was

charged with AWOL;

g. On November 18, 2006, he was performing double duty (supervisory

duties and a special project);

h. On December 9, 2006, he discovered that his request for 80 hours of

sick leave was disapproved; and

i. On December 28, 2006, he received a certified letter from the Chief

Human Resources Management Services (HR), requesting medical documentation

from his private physician and not a clinical psychologist by January 5,

2007.

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 and the AJ held a hearing4 on March 26, 2008 and

issued a decision on April 30, 2008.

In her decision, first applying a disparate treatment analysis, the

AJ found that complainant could not establish a prima facie case of

discrimination as there was no nexus between his prior EEO activity

(which took place at a different agency location over a year earlier,

and involved different managers) and the challenged actions herein.

The AJ nevertheless assumed arguendo that complainant could establish a

prima facie case and found that the agency had articulated legitimate,

nondiscriminatory reasons for its actions, which complainant had not

shown to be pretextual. Next, applying a harassment analysis, the

AJ found that complainant was unable to proffer evidence which would

support a harassment claim. 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 reiterates his version of the facts and submits

documentation. He also asserts that he followed proper procedures when

requesting leave, while the agency violated its own policies concerning

the granting of leave. He also contends that management had knowledge

of his prior EEO activity, noting in part that he personally discussed

his prior EEO activity in Louisiana with agency officials. Complainant

further asserts that he was subjected to disparate treatment. Finally,

he contends that during the hearing the agency representative used

intimidation tactics and humiliated him, causing him to lose his focus.

In reply, the agency states that assuming arguendo that agency officials

were aware of complainant's participation in prior EEO activity in

Louisiana a year earlier, complainant has failed to prove that there is a

nexus between his prior EEO participation and the adverse actions alleged

in his current complaint. Further the agency asserts that complainant's

appeal brief offers no reason why the FAO should not be affirmed.

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).

Initially, we address complainant's statement that the agency

representative intimidated and humiliated him during the hearing.

We have reviewed the hearing transcript, in particular, the portions of

the transcript to which complainant refers, and we find that where the

agency representative was speaking very loudly to complainant (nearly

screaming), the AJ instructed her to lower her voice. See HT, at 96.

Additionally, where the representative appeared to be trying to persuade

complainant to change his testimony, the AJ stated "you can't make him

say what he doesn't want to say. No need to beat that down, it's obvious

who it was sent to, and who it's from." Id., at 111. We find that the

AJ properly addressed the agency representative's behavior, and we do

not find any evidence that complainant's ability to testify honestly

and completely was hindered by any alleged "intimidation tactics."

Disparate Treatment

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 Construction

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. 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 pretextual. 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).

Assuming complainant could establish a prima facie case of reprisal

discrimination, the agency has provided legitimate, nondiscriminatory

reasons for its actions. Specifically, as to incident (a), CH testified

that he did not recall having a meeting with complainant nor did he

recall threatening complainant at anytime. As to incident (b), CH

denied being aware that complainant was performing double duty work from

October 26-31, 2006. He stated that according to complainant's timecard,

he worked an 80 hour tour for the two week timeframe. As to incident

(c), CH stated he was not familiar with the October 27, 2006 incident

however he said that supervisors and employees are all required to use

the medical center leave policy.

As to incident (d) the agency found that the discrepancies that CH

identified following the inspection were related to work that should

have been accomplished by employees under complainant's supervision.

The standard procedure following the inspection is for CH's secretary to

prepare the list of discrepancies and it is then given to the responsible

supervisor. CH stated that supervisors and employees are normally given

seven days to correct the discrepancies identified during an inspection.

CH additionally stated that he had a counseling session with complainant

on November 13, 2006, As to incident (e), CH stated that complainant

needed to be counseled because he was not following proper policy for

requesting leave. He noted that complainant signed the counseling letter,

which informed him that he was being charged as AWOL. In incident (f),

which is related to incident (e), CH stated that he charged complainant

with 24 hours of AWOL in November 2006 because he did not follow proper

procedure for requesting leave when he called another employee (whom

complainant claims was an "Acting" supervisor) to say he needed leave.

CH stated that there is no procedure in place whereby an employee is

allowed to call their counterpart or call their co-worker to request

leave. The policy is that employees are required to contact their

immediate supervisor when they want time off. As to incident (g),

CH testified that he is responsible for assigning work and he did not

recall assigning complainant double duty for November 18, 2006.

As to incidents (h) and (i), CH testified that complainant's request for

sick leave from November 27, 2006 - December 8, 2006 was not denied.

He stated that complainant was out for two weeks and management did

not have a note from his doctor, so he was being carried as AWOL as

they do with all employees. CH further stated that he had received a

faxed note from complainant's psychologist however it was not legible.

He stated that he left a message on complainant's cellular telephone and

home telephone, informing him that the note was not legible. According to

CH, complainant then forwarded a legible copy of the document and he was

then approved for 80 hours of sick leave. While complainant essentially

argues that CH dislikes employees who have engaged in EEO activity,

the Commission finds that the AJ's conclusion that complainant has not

established pretext, is supported by substantial evidence of record.

Harassment

Based on the standards set forth in Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993), in order to prevail on a claim of harassment,

complainant must prove that: (1) he was subjected to harassment that

was sufficiently severe or pervasive to alter the terms or conditions

of employment and create an abusive or hostile environment; and (2)

the harassment was based on his membership in a protected class.

See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on

Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the

Treasury, EEOC Request No. 05970077 (March 13, 1997). After reviewing

the entire record, including complainant's testimony concerning CH's

alleged "threatening" statement about not wanting anybody working for him

that was not "with him", substantial evidence supports the conclusion

that complainant did not show that the alleged harassment was based

on retaliatory animus. See EEOC Notice No. 915.002 (March 8, 1994),

Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the final

order.

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

________9/09/09__________

Date

1 The Commission has listed the incidents differently from how they were

listed in the Report of Investigation and by the Administrative Judge,

namely, we have listed them chronologically, and we have combined certain

issues which were redundant.

2 In the investigation, complainant explained this claim as follows:

during a conversation, his supervisor asked him if he was "with him"

or not, because he needed to know and that he did not want anybody

working for him that was not "with him." Id. During the hearing,

complainant testified that CH stated "if you're not with me, I'll get

rid of you right now." HT, at 38. He also stated that this matter

came up after they had recently discussed the EEO activity of one of

complainant's subordinates. Id., 39-43.

3 Complainant stated that on October 27, 2006, his co-worker was given

the option of using sick or annual leave for a dental appointment,

while he was never given that same option. ROI, Ex. B-1, 41-44.

4 In the decision, the AJ noted that complainant did not request any

witnesses other than himself. See AJ Decision at 1.

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0120083021

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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