Joseph Robinson, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJun 10, 2010
0120101186 (E.E.O.C. Jun. 10, 2010)

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

2

0120101186

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120101186