0120091053
06-10-2009
Leemanuel A. Wakefield, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Leemanuel A. Wakefield,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091053
Agency No. 200J-0537-2008101997
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 17, 2008 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.
During the period at issue, complainant was employed as a Maintenance
and Operations Supervisor, WS-14, at the agency's Jesse Brown VA Medical
Center in Chicago, Illinois.
On April 3, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to disparate treatment
and harassment in reprisal for prior protected activity when:
a. on February 1, 2008, complainant's immediate supervisor (S1) humiliated
him and disrespected his authority when S1 copied one of complainant's
subordinates on an e-mail, wherein he accused complainant of poor
performance and showing a lack of responsibility regarding a matter
beyond complainant's control;
b. on February 22, 2008, S1 insisted that complainant provide
documentation that showed the facility met the Generic Inventory Package
(GIP). Complainant advised S1 that the employees working on the GIP
expressed concerns about the past practice of providing inaccurate
information. As a result, S1 told complainant that his performance was
poor and to take whatever steps necessary to adjust the numbers to get
a good report;
c. on February 22, 2008, complainant left S1's office to avoid further
confrontation and conflict. As a result, S1 sent complainant an e-mail
indicating that complainant disrespected him because he did not stand
there and allow S1 to continuously badger him; and
d. on May 16, 2008, complainant's second-line supervisor (S2) denied
complainant's request to fill the position of GS-12 Safety Manager.
S2 also told complainant that he had responded too late for the job
opportunity, that he did not meet the qualifications of the job, and
that he was a poor performer who did sloppy work.1
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). In accordance with
complainant's request, the agency issued a final decision on December 17,
2008, pursuant to 29 C.F.R. � 1614.110(b).
In its December 17, 2008 final decision, the agency found that
complainant did not establish a prima facie case of harassment.
The agency nonetheless found that management articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext.
Regarding claim (a), S1 stated he vaguely recalled copying one of
complainant's subordinates on an e-mail to complainant which accused
complainant of poor performance. S1 further stated that during
the relevant time, GIP "was an issue, that it wasn't being completed
within that time period, the monthly time period." S1 stated "I had no
intention of humiliating him. My purpose was to basically ask him what
can be done to finish the job in time." S1 stated that copying one of
complainant's subordinates was an "oversight. That may be just because
forwarding the e-mail that came to me, and I did not remove his name,
and I should have."
Regarding claim (b), S1 denied telling complainant to adjust the numbers
just to get a good report. Specifically, S1 stated "there [is] more than
one way to report the data that is being reported. I'm not saying they
put in false information, no. There are different ways to do it, and I
was just suggesting one way, and they had another - - they wanted to do
it another way, so I said, 'Okay. If this is how you want to present the
data, it's fine.' I was just suggesting to present it another way. The
data is still the same."
S1 further stated that he did not say complainant's performance was poor.
S1 stated that he did not say that complainant was a poor performance but
that Logistics had reported that the Engineering Service's performance was
poor since the GIP numbers were in the "red." Specifically, S1 stated
"what it means to be 'in red' means, if inventory is not taken of the
stored materials up to a certain - - say - - suppose we have 1,000 items
and we did not update the inventory of 90 percent of the items within
that month, then it means we are 'in red'." Furthermore, S1 stated that
it was complainant's team that was responsible for improving the numbers
in the GIP.
Regarding claim (c), S1 stated that he was talking to complainant in
his office and complainant simply walked away from him. Specifically,
S1 stated "we were talking about it, and while I was asking him the -
- whether it was - - whatever the task was at hand, he was just walked
away from my office. And I said - - I basically was saying, 'We need
to conclude this.' And I'm still talking, and he just walked away."
S1 further stated that "it was not an angry conversation. It was
basically a conversation in the office." Furthermore, S1 stated that
found complainant's actions to be "insulting."
Regarding claim (d), S2 denied telling complainant that he would
not put him in the Safety Manager position. S2 stated that during
a staff meeting, he asked if anyone was interested in training for
the subject position, and complainant "he did not respond. And he
replied to me that he wasn't interested in training for the position,
he just wanted to have it." S2 acknowledged telling complainant that
he was not qualified for the subject position, and that he was a poor
performer and did sloppy work. S2 stated that the subject position
was vacant because the person who was in it took another job just a
year after having been hired. S2 stated that because there was a high
turnover in the subject position due to its complexities, he decided to
look at options other than hiring candidates under the normal process.
S2 stated that he contacted the training staff in St. Louis, Missouri,
which manages a field development program "which actually have trainees
that train for safety 1H-type positions." S2 stated that the training
staff sent him a list of trainees that were interested in finding a
second-year station, and from that list he identified the selectee.
S2 stated that the selectee has a master's degree in environmental "which
I think includes occupational safety and industrial hygiene. And that
was the key for me in selecting him. He also has an undergraduate degree
as an electrical engineer."
Further, S2 stated that in regard to the subject position, he needed
someone "who is outgoing. I need a person who has the capability to
go out and train others, do accident investigation, has good writing
skills, good communication skills. And as the selecting official for
this position, and what I'd expect of a training manager, [Complainant]
don't meet those standards." S2 stated that during a weekly management
meeting, he asked complainant to summarize the work his staff had done for
the week instead of giving him a prepared report, complainant "would copy
the information as given to him by his supervisor. And so, I would get
a jumble of paper with - - from five different people stapled together.
At different times, he hand writes information on those documents.
It just presented very unprofessionally." Furthermore, S2 stated
that complainant's prior protected activity was not a factor in his
determination not to select him for the Safety Manager position.
On appeal, complainant, through his attorney, contends that the agency
erred in finding no discrimination because it did not do a proper analysis
of his reprisal claims. Specifically, complainant argues that the agency
"seems to spend much of its time evaluating race discrimination and
harassment, but not retaliation, which was the basis of [Complainant's]
claims." Complainant states that he "has never received any counseling
that his work was poor or sloppy, and there is not one legitimate document
in his personnel file to support anything other than [Complainant]
has been an exemplary employee."
Further, complainant states that the most recent Safety Manager
placement is a continuing pattern of retaliation against him.
Complainant specifically makes reference to a July 7, 2008 decision by
an Administrative Judge, regarding a non-selection for a Safety Manager
position, where no discrimination on this matter was found. Complainant
asserts that this prior non-selection was tainted and improper.
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if
true, do not rise to the level of a hostile work environment.
Finally, the Commission addresses complainant's above referenced appellate
arguments. The Commission determines that the record does not support
complainant's argument that the agency conducted an improper analysis of
complainant's claims as they relate to the basis of reprisal. Moreover,
the Commission does not find the prior matter before an Administrative
Judge, relating to another non-selection, as dispositive of the matters
at issue in the instant complaint
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final decision because the preponderance of the record evidence does
not establish that discrimination occurred.
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, 2009
__________________
Date
1 The record reflects that the non-selection claim was later amended to
the instant complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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