0120101186
06-10-2010
Joseph Robinson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joseph Robinson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101186
Hearing No. 450-2009-00022X
Agency No. 200306742008100887
DECISION
On January 21, 2010, complainant filed an appeal from the agency's
December 10, 2009 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 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 decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Food Service Worker Foreman at the agency's Veterans Canteen Service
facility in Waco, Texas.
On March 22, 2008, complainant filed an EEO complaint alleging that he was
discriminated against on the bases of sex (male) and reprisal for prior
protected EEO activity when, on November 27, 2007, management informed
complainant of his suspension for two days, effective December 11 and 12,
2007, for conduct unbecoming a supervisor.
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. Subsequently, complainant, through counsel,
requested a "right to sue" letter from the EEOC. The AJ noted that the
Commission did not issue such letters in the federal complaint process.
The AJ interpreted the request for a "right to sue" letter as a request
for a withdrawal of his request. Consequently, the agency issued a final
decision 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.
This appeal followed. Complainant's attorney asserted that complainant
was not seeking a withdrawal of the matter before the AJ. Instead,
complainant's attorney argued that complainant merely sought that the
agency adhere to the timeframes required within the regulations regarding
the processing of his complaint.
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").
Dismissal of Hearing
A review of the record showed that complainant specifically requested for
a "right to sue" letter from the Commission in order for complainant to
"litigate the matter" in another forum. Upon review of the request and
the regulations, it is reasonable for the AJ to have taken the letter
as a request for a withdrawal of the hearing. Therefore, we are not
persuaded by complainant's argument that the matter should be remanded
back to the AJ for a hearing.
Claim of Discrimination
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, since the agency has articulated
legitimate and nondiscriminatory 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. 133, 120 S.Ct. 2097 (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).
Upon review of the record, we find that the agency has provided
legitimate, nondiscriminatory reasons for the suspension. The
Recommending Official (RO) noted that complainant was accused of:
(1) disclosing confidential information to a subordinate employee;
(2) informing the subordinate employee that the agency's Police
Service and the police department would be watching her; and (3)
telling the subordinate employee that she was "acting like the
crackheads she hangs with." Complainant admitted to the actions.
The RO recommended suspending complainant for three days based on his
actions. The Deciding Official (DO) accepted the RO's recommendation
for the suspension. However, the DO reduced the suspension to two days.
Based on the record as a whole, we find that the agency articulated
legitimate, nondiscriminatory reason for the suspension. The burden
shifts to complainant to show that the agency's reasons were pretext
for discrimination. Upon review, we find that complainant has not
met his burden. Therefore, we conclude that complainant has not shown
that he was subjected to discrimination based on his sex and/or prior
protected activity.
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.
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
June 10, 2010
__________________
Date
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0120101186
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101186