0120110587
07-11-2012
Jeffrey Woerner, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jeffrey Woerner,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110587
Agency No. 200405122009102248
DECISION
On October 4, 2010, Complainant filed an appeal from the Agency's 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 Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse at the Agency's Medical Center in Perry Point, Maryland. On July 29, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when:
1. on March 2-3, 20091, management placed him on administrative leave;
2. on April 20, 2009, management reassigned him to the Mental Health Intensive Community Management unit; and
3. management harassed him as evidenced by the afore mentioned incidents as well as a March 3, 2009, allegation by a co-worker regarding Complainant's drug use and management requiring Complainant to submit urine samples for drug testing.
The Agency accepted the complaint and conducted an investigation. The investigation found that during this time, Complainant was in a relationship with and lived with CW1, a co-worker. On February 26, 2009, CW1 requested he vacate their shared residence. When Complainant refused, CW1 called 911 for assistance. [ROI, at 204]. The following day, Complainant called in sick, stating that he was being physically and sexually harassed and assaulted by CW12 at work and at home. [ROI, at 119]. This same day, CW1 reported to management that Complainant was using illegal drugs.3 [ROI, at 120-121]. Complainant was put on administrative leave for March 1, 2009, to give management time to find a new assignment for CW1 while his claim of harassment was investigated. [ROI, at 119].
On March 23, 2009, Complainant was requested to provide a urine sample for the purpose of drug testing. He did so and tested positive.4 Complainant claimed that the test had been tampered with. The sample was re-tested on April 20, 2009. The result was positive again, and Complainant was transferred to the Mental Health Intensive Community Management unit, where he would not be directly interacting with patients.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
Claims 1 and 2 - Disparate Treatment
To prevail in a disparate treatment claim where there is no direct evidence, 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 in regard to both claims. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-717 (1983).
The Agency explains that management put Complainant on administrative leave for one day while it arranged a new assignment for CW1, consistent with its policy that employees be separated after an allegation of harassment. Because they had to ensure sufficient coverage in the unit where both CW1 and Complainant worked, and Complainant was already scheduled to be off for half of the weekend, management gave him administrative leave for one day while CW1 worked and then gave CW1 administrative leave when Complainant was scheduled to work. This ensured that the unit was covered, and they were separated while a new assignment was found for CW1. There was only one day of administrative leave, not two as claimed by Complainant. The Agency was also complying with its internal policy when it reassigned the Complainant to a non-patient care position after a positive drug test.
To prevail, Complainant must then prove, by a preponderance of the evidence, that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). Complainant has been unable to adduce evidence that the articulated reasons for the Agency's actions were pretext designed to conceal discriminatory animus.
Claim 3 - Harassment
Complainant alleges that he was subjected to hostile work environment 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). We find that there is simply no evidence that any of these actions were taken based on Complainant's sex. Without evidence of this, his harassment claim fails.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's final decision.
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
July 11, 2012
__________________
Date
1 There is no evidence that Complainant was put on administrative leave on these days. Complainant seems to be referring rather to March 1, 2009, the one day which he was placed on administrative leave. [Report of Investigation (ROI), at 120].
2 Statements collected by Agency from sixteen staff members did not support Complainant's allegations of CW1's harassment. [ROI, at 180, 182, 205-249].
3 Complainant was also accused of using drugs by another coworker. [ROI, at 186].
4 Complainant showed up several hours late to the test. [ROI, at 180]. CW1 alleges that Complainant spoke with her about trying to cheat the test by sufficiently diluting his urine by drinking lots of water. [ROI, at 193]. Complainant has not disputed this statement by CW1.
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0120110587
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013