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
7
0120083021