0120073404
09-25-2009
Isaac P. Decatur, Jr., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Isaac P. Decatur, Jr.,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073404
Agency No. 200L-0629-2005103156
DECISION
On July 24, 2007, complainant filed an appeal from the agency's June 21,
2007 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS in part and REVERSES
in part the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Housekeeping Aid Supervisor at the agency's New Orleans, Louisiana
Medical Center. On February 10, 2006, complainant filed an EEO complaint
alleging that he was discriminated against on the basis of reprisal for
prior protected EEO activity when:
1. On May 26, 2005, complainant was charged absent without leave (AWOL)
for 16 hours for leave approved by a supervisor1;
2. On June 27, 2005, complainant was charged AWOL for 8 hours;
3. On July 15, 2005, complainant was charged AWOL for 16 hours for leave
approved by a supervisor on July 11, 2005;
4. On July 29, 2005, complainant was charged AWOL for 64 hours for leave
taken July 14, 2005 - July 22, 2005; and
5. On July 10, 2005, the supervisor changed complainant's tour of duty
from 12 AM - 8:30 AM to 7:30 AM - 4:30 PM.
At the conclusion of the investigations,2 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). In accordance
with complainant's request, the agency issued a final agency decision
(FAD) 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.
In its FAD, the agency determined that complainant had established
a prima facie case of discrimination for incidents 2 and 43 but not
for incidents 1, 3 and 5. The agency concluded that the management
officials responsible for these incidents (LT and MT) had no knowledge of
complainant's prior EEO activity at the time these incidents occurred.
However, the FAD noted that even if complainant had established his
prima facie case of discrimination for incident 5, the agency asserts
that the change of tour was made for "efficiency of service" and was
within managerial discretion.
With respect to incidents 2 and 4, the agency determined that it had
articulated a legitimate, non-discriminatory reason for its actions.
The agency cited disagreement among FMSL management and HR officials
concerning the interpretation of the leave policy and its application
to complainant's circumstances; namely, that documentation of the
type complainant submitted had previously been accepted as valid for
purposes of establishing sick leave. The disagreement was resolved by
the conclusion that there had been a previous erroneous application of
leave policy for all instances of sick leave.
The agency went on to conclude that complainant had failed to establish
pretext because the evidence of pretext he had offered was the affidavit
of a witness in a different employee's EEO complaint proceeding, and the
affidavit failed to address the circumstance of the incidents involved
in the present complaint.
CONTENTIONS ON APPEAL
On appeal, complainant takes issue with the factual background contained
in the FAD, citing inaccuracies. Complainant also argues that supervisor
LT did have knowledge of his EEO activity because of LT's participation
in an EEO hearing in which complainant appeared as a witness. He further
claims that MT was copied on an e-mail informing complainant of the time
he was to appear as a witness in an EEO hearing.
Complainant argues that the tour change took place on July 11, 2005, not
July 10, 2005, and that the agency falsified the schedule to make the date
appear different. Complainant also argues that he did work the new tour,
contrary to a footnote in the FAD indicating that, despite any official
changes, complainant never worked the changed hours. Complainant further
asserts that VA policy indicates that employees are supposed to receive
notice of any tour changes, which complainant states he was not given.
Complainant further argues that MT assured him that his tour would not
be changed.
Complainant argues that the May 26 AWOL charge did not appear until
July and that he did not receive the proper notification regarding such
a charge. He also argues that the employee policy does not require
employees to request sick leave in advance. He further argues that
other employees have not had to submit requests in order to be granted
sick leave. Complainant notes that, while the FAD indicates that he
was approved for sick leave on June 27, he was still charged AWOL for
that time.
Further, complainant argues that the management official responsible for
interpreting the leave policy is the Chief of Human Resources Management
(CHRM), not the operating official, and that it was inappropriate for JB
to substitute her interpretation of the leave policy for that of the CHRM.
Complainant presents hearing testimony and a written affidavit of a
witness in another EEO complaint who testified that JB had identified
complainant as a "troublemaker" who she was trying to "get rid of."
On appeal, the agency maintains that its decision was proper and urges
the Commission to affirm its findings.
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). 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, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Complainant's prima facie case
As a threshold issue, the Commission finds that the agency erred
by finding that complainant had failed to establish a prima facie
case of reprisal with regard to issues 1, 3 and 5 on the ground that
the responsible management officials did not have prior knowledge of
complainant's EEO activity.4 The record indicates that MT was aware of
complainant's EEO activity prior to the above incidents. By e-mail dated
March 7, 2005, MT was notified that complainant would be testifying as
a witness in an EEO hearing on March 8, 2005. This e-mail is evidence
that MT did have prior knowledge of complainant's participation in the
EEO process. The Commission has stated that participation occurs when
an employee has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding or hearing. Whipple
v. Department of Veterans Affairs, EEOC Request No. 05910784 (February
21, 1992) (citations omitted). Although complainant argues that LT did
have knowledge of his EEO activity, the claim cannot be verified in the
record. However, we find that LT's knowledge is immaterial. We find MT's
knowledge sufficient in this circumstance because, although complainant
names LT as a responsible management official, LT's testimony indicates
that MT is responsible for granting leave and arranging work schedules.
(LT affidavit at 4.) Although as a general matter the testimony
of the three identified RMOs is conflicting, LT's testimony on this
particular issue is corroborated by the payroll records which include
the notation "as per MT." (Complainant's original and corrected payroll
records5.) In its FAD the agency conceded that the only deficiency in
complainant's prima facie case for incidents 1, 3 and 5 was the lack of
requisite knowledge on the part of the responsible management officials.
Having overcome the deficiency, the Commission finds that complainant did
establish a prima facie case for all incidents listed in this complaint.
Reprisal Claims
Because the agency has offered a legitimate non-discriminatory reason
for its actions, complainant bears the burden of proving pretext by
a preponderance of evidence. McDonnell Douglas Corporation v. Green,
411 U.S. 792, 804 (1973). Pretext can be demonstrated by "showing
such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the [Agency's] proffered legitimate reasons
for its action that a reasonable fact finder could rationally find
them-unworthy of credence." Dalesandro v. United States Postal Serv.,
EEOC Appeal No. 01A50250 (Jan. 30, 2006) (citing Morgan v. Hilti, Inc.,
108 F3d 1319, 1323 (10th Cir. 1997)).
The Commission finds that complainant has presented substantial evidence
to support his assertion that the agency's proffered reason for charging
him as AWOL was pretext for discrimination. The statements made by
management in support of their decision are not supported in the record.
The FAD lists the testimony of two human resources (HR) officers as
supporting JB's testimony that she was unclear about the acceptability of
complainant's documents and sought guidance. Both HR officials deny that
JB sought such guidance with regard to complainant. The CHRM testified
that he "did not receive a request from [JB] regarding the acceptability
of [Dr. B's] documentation for [complainant's] sick leave request." He
went on to note that "HRM provided general advice to facilities management
service line regarding the criteria they were using to evaluate requests
for sick leave. We indicated to them that they were using the criteria
for incidents of 'sick leave certification' to evaluate requests for
regular sick leave. This was provided to them on more than one occasion
and occurred a few months before hurricane Katrina on August 29, 2005."
(CHRM affidavit at 4.)
JB's testimony contains further inconsistencies. In her telephonic
affidavit, JB stated, "[T]he clarification that needs to be made was, does
this title or this position fall under the category of medical doctor,
and our -- the information we received from Human Resources was that
they were not. And the policy clearly states, medical doctor." (JB's
September 22, 2006 affidavit at 8.) A plain reading of the applicable
portions of the leave policy contains no such requirement. 6 By e-mail
dated April 25, 2007, the CHRM clarified his testimony by adding, "FMSL
was using the attachment to the Leave Policy which dealt with Sick Leave
certification in dealing with their day-to-day requests for Sick Leave
from all of their employees, even those who were not under notice that
Medical Certification was required. This had the effect of requiring
that an MD sign the sick leave excuse for the employee in question." The
testimony of the CHRM would indicate that JB had not sought guidance from
HR about complainant's documentation and that she had already been advised
that she was using the incorrect standard for evaluating sick leave.
JB's purported confusion over the acceptability of complainant's
documentation is further impugned by her participation in an
ancillary EEO case where precisely this documentation was at issue.
The record indicates that complainant was a witness in a parallel
case in which JB was the RMO. Bench Decision February 12, 2005, Docket
No. 270-2004-001117X; 270-2005-00013X. An affiant, whose testimony the AJ
found to be highly credible, testified that JB had identified complainant
as a "troublemaker" (meaning someone who had filed an EEO complaint)
and told a group of new supervisors that she wanted to "get rid of them"
(the troublemakers). The affiant went on to describe how documentation
from the same clinical psychologist, Dr. B, was deemed unacceptable for
leave purposes for this complainant. He further indicated that he had
first hand knowledge of JB's policy of having her secretary destroy any
documentation relating to that complainant's sick leave.
Lastly, the record reflects a great deal of conflicting testimony. In her
affidavit dated May 19, 2006, JB indicated that she was not responsible
for the decision to list complainant as AWOL, that she never instructed
anyone to list complainant as AWOL, and that she sought guidance from
Human Resources on whether or not the letter from Dr. B was acceptable
documentation for sick leave. However, in his affidavit dated May
16, 2006, MT testified that JB instructed him to instruct LT to charge
complainant as AWOL. MT affidavit at 4. In his affidavit dated July 29,
2006, MT testified that because complainant's first-line supervisor was
unclear about what to do, he brought the documentation to JB for further
guidance. MT's July 29, 2006 affidavit at 7. MT went on to say that,
although JB and another management official told him that they had not
accepted such documentation in the past, he later found out that they
had accepted similar documentation. Id. at 8. These inconsistencies
serve to seriously undermine the legitimacy of the agency's proffered
reason for its actions regarding complainant's AWOL status.
We find that the agency's proffered reason for listing the complainant
as AWOL is pretextual. The record reflects that, in order to use sick
leave for more than 3 consecutive days, an employee must make a note of
the use of sick leave in the electronic time and attendance system and
provide either a medical certificate or a written statement. Complainant
alerted the time and attendance system and provided a note from Dr. B
stating that complainant was unable to function at work due to stress
and should be absent for two weeks. Complainant's satisfaction of the
documented sick leave procedure combined with the conflicting testimony,
particularly that of JB, establishes by a preponderance of evidence that
agency's proffered reason is merely a pretext for discrimination.
With respect to claim 5, the Commission finds that the agency articulated
a legitimate nondiscriminatory reason for its action; namely, that the
decision concerning complainant's tour of duty was changed based on
management's need to rotate supervisors for the efficiency of service.
We find that complainant has not shown that the agency's proffered
reason was pretext for discrimination in this regard. Accordingly,
we will affirm that part of the FAD pertaining to claim 5.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD as
pertains to claim 5; we REVERSE the FAD as it pertains to claims 1 through
4, and remand the case for further proceedings as set forth below.
ORDER
To the extent that it has not already done so, the agency is ordered to
take the following action:
1. To the extent that it has not already done so, within thirty (30)
days of the date this decision becomes final, the agency shall correct
complainant's time and attendance records to reflect use of approved
sick leave rather than AWOL for the dates at issue herein.
2. The issue of compensatory damages is remanded to the agency. Within
sixty (60) days of the date this decision becomes final, the agency shall
conduct a supplemental investigation to determine whether complainant is
entitled to compensatory damages incurred as a result of the agency's
discriminatory actions. The agency shall allow complainant to present
evidence in support of his compensatory damages claim. Complainant shall
cooperate with the agency in this regard. Thereafter, the agency shall
issue a final decision. 29 C.F.R. � 1614.110(b). The supplemental
investigation and this issuance of the final decision must be completed
within sixty (60) calendar days of the date this decision becomes final.
The agency shall submit a copy of the final agency decision to the
Compliance Officer as is set forth below.
3. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that corrective action has been implemented.
4. The agency shall consider taking disciplinary action against the
managers and supervisors involved in this action, and report its decision
to the EEOC Compliance Officer, as is instructed below. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision.
5. Within forty-five (45) calendar days of the date of this decision,
the agency shall provide thirty-two (32) hours of EEO training to all
RMOs named in the complaint. The training shall focus on management
obligations under Title VII with an emphasis on reprisal.
6. The agency shall post the attached notice in the area where notices
are usually attached as is set forth in the posting notice below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, D.C. 20013. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
POSTING ORDER (G0900)
The agency is ordered to post at its Medical Centers in Houston, TX,
New Orleans, LA and Durham, NC, facilities copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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, D.C. 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
September 25, 2009
Date
1 Complainant has identified three responsible management officials (RMO):
LT, a foreman; MT, a Housekeeping Supervisor; and JB, the Director of
Facilities Management Service Line (FMSL).
2 Two supplemental investigations were ordered, one on August 29, 2006
and one on March 7, 2007.
3 The agency claims that JB was responsible for these incidents and does
not contest her knowledge of complainant's prior EEO activity.
4 Additionally, the Commission finds it significant that the agency
contends that the RMO for incidents 2 and 4 was JB, while the RMO for
incidents 1 and 3 were MT and/or LT, when the incidents involved are
so similar. This is especially significant when all parties involved
have expressly denied responsibility for listing or instructing anyone
to list complainant as AWOL.
5 The record indicates that on July 18, 2005, MT instructed pay roll to
code complainant as using his sick leave. The payroll notation goes on
to show a note dated July 22, 2005, indicating that complainant was to
be coded as AWOL for 56 hours due to inadequacy of documentation.
6The agency's leave policy provides, "All requests for leave will
be made as far in advance as possible and shall include supporting
documents, as required (Attachment A). Numbered Memorandum ADL- 33:
Leave Administration, Sec. 4(b). Documented through the electronic T&A
System, sick leave in advance of 3 consecutive days shall be accompanied
by acceptable medical certification." Id. at 4(m)(1). In the necessary
documents column of Attachment A, sick leave is listed as requiring,
"Electronic T&A (medical certificate {4} or written statement).
The approving official is listed as "supervisor." Note {4} indicates
"Acceptable medical certificate for all absences due to illness must
include a general statement of the employee's condition and how it relates
to his/her ability to perform the duties of the position. The chief,
HRM will review for sufficiency of documentation and for consistency
with regulations."
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0120073404
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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