0120081534
08-19-2009
Joe K. Holt, Jr., Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Joe K. Holt, Jr.,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120081534
Hearing No. 540200700106X
Agency No. HHSIHS03032006
DECISION
On February 11, 2008, complainant filed an appeal from the agency's
January 10, 2008 final order 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 the agency's final
order.
BACKGROUND
At all times relevant to this complaint, complainant was employed as
a Human Resources Specialist, GS-201-11, at the Navajo Area Office in
St. Michaels, Arizona.
On April 13, 2006, the agency advertised a Health System Administrator
position in Sanders, Arizona. The selecting officials found that
complainant was not qualified for the position because he failed to
demonstrate that he had the required one-year experience in a health
care administration setting.
On October 13, 2006, complainant allegedly accused management officials
of obtaining their positions through inappropriate relationships with
an employee. On October 17, 2006, complainant allegedly stated that
he felt his phone was under increased surveillance, that his management
officials should return to the Navy, and that neither would be missed.
Also on October 17, 2006, complainant responded to an email with numerous
recipients and criticized Division Directors, asking "What do Division
Directors do?" On November 3, 2006, complainant allegedly said to his
third-line supervisor, "You are a liar. You are a piece of shit. You can
reprimand me again." Complainant denies making any of these comments.
On November 7, 2006, complainant received a Letter of Reprimand for making
inappropriate comments, which notified complainant that his supervisor
was proposing a suspension. The Letter of Reprimand ultimately resulted
in a three-day suspension effective January 27, 2007.
Complainant's last day of employment at this location was January 20,
2007.
On October 5, 2006,1 complainant filed a formal EEO complaint alleging
discrimination on the bases of race (American Indian) and reprisal for
prior protected EEO activity when:
1. On August 7, 2006, he was informed that he did not qualify for the
position of Health Systems Administrator, GS-670-12/13, in Sanders,
Arizona, under Vacancy Announcement FD-06-57;
2. On October 30, 2006, he received an Official Letter of Reprimand; and
3. On December 6, 2006, he received a decision letter notifying him that
he would be suspended for three days in January 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, which was held on November 7, 2007. On December
7, 2007, the AJ issued a decision finding that complainant failed to
establish his prima facie cases of discrimination, or that the agency's
legitimate, non-discriminatory reasons for its actions were pretext for
discrimination. 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. Complainant now appeals to the Commission.
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).
Complainant is alleging that he was disparately treated on the bases
of race and reprisal for prior protected EEO activity when he was
not selected for a Health Systems Administrator position, when he
was issued an Official Letter of Reprimand, and when he was issued a
three-day suspension. 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, because the
agency has articulated legitimate and non-discriminatory 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. 143 (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).
We will assume for the sake of argument that complainant established
his prima facie cases of race and reprisal2 discrimination.
The agency articulated legitimate, non-discriminatory reasons for its
actions. Specifically, complainant was not selected for the Health
Systems Administrator position because he was not qualified, as he did
not demonstrate that he had the requisite one year of experience in a
health care administration setting. Complainant received the Official
Letter of Reprimand because he was disrespectful and made inappropriate
comments, which eventually resulted in a three-day suspension.
Complainant must now establish, by a preponderance of the evidence,
that the agency's legitimate, non-discriminatory reasons were pretext
for discrimination. The record supports the agency's assertion that
complainant failed to establish that he was qualified for the position
because he did not demonstrate that he had the requisite one-year
specialized experience in a health care setting. Further, the record
supports the agency's assertion that the selectee was the best qualified
for the position and that her resume reflected specialized experience in
a health care setting. Additionally, a critical issue during the hearing
was whether management officials were lying about complainant making
the alleged inappropriate comments. Substantial evidence in the record
supports the AJ's credibility determination in support of the managers'
allegations. Specifically, e-mail messages displayed complainant's
disrespect towards management officials, as did complainant's numerous
outbursts and disrespect towards management during the hearing process,
even after repeated warnings from the AJ. Complainant failed to establish
that discriminatory or retaliatory animus more likely than not motivated
the management officials' actions. As a result, we find complainant
failed to establish the agency's legitimate, non-discriminatory reasons
were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision, because a preponderance of the evidence of record does
not establish that discrimination occurred as alleged.
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
August 19, 2009
Date
1 Complainant amended his complaint on November 3, 2006, and December
22, 2006.
2 On appeal complainant asserts that he has discovered new evidence that
demonstrates that his supervisor was aware of his prior protected EEO
activity. We note that management's knowledge of complainant's prior
protected EEO activity is relevant in establishing complainant's prima
facie case of retaliation. However, because we are assuming arguendo
that complainant established his prima facie case of retaliation, we
need not address the issue of the new evidence.
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0120081534
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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