0120091013
06-22-2010
Levern Staples, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Levern Staples,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091013
Hearing No. 480200800078X
Agency No. 200P06912007102730
DECISION
On December 16, 2008, Complainant filed an appeal from the Agency's
November 12, 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 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
order.
ISSUES PRESENTED
1. Whether the EEOC Administrative Judge (AJ) properly issued a decision
on summary judgment;
2. Whether the AJ properly dismissed claims (1)-(10); and
3. Whether the Agency discriminated against Complainant based on his
race and disability with respect to claim (11).
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Patient Services Assistant, GS-5 at the Agency's Telecare
Section of the Primary and Ambulatory Care Line facility in Los Angeles,
California. On May 16, 2007, Complainant completed a Report of Contact
form that was given to the Responsible Management Official (RMO). In
the report, Complainant stated that on May 16, 2007, at 10:31 a.m.,
as he was on his way to the printer, another coworker (CW), "sprung
out and headed to the printer, cutting [him] off." Further in the
report Complainant stated that he held out his hand for CW to give him
the pages that were his; but instead, CW snatched his pages and walked
away. Complainant then stated in the report that "an angry CW appeared at
[his] desk" asking why he tried to snatch the papers from him. In the
report Complainant stated that this angered him, so he asked CW to come
outside with him to discuss the issue "man-to-man." On May 16, 2007,
CW also completed a report that was given to the RMO. In this report,
CW indicated that later he went to Complainant's office to ask him why
he tried to grab the paper, and Complainant responded that "I thought it
was mine. Now don't ask me anything else, ever." CW further indicated
in the report that Complainant came to his office two or three times
that day and stared at him in a threatening manner. Also in the report,
CW stated that Complainant called him a "punk," and said "yes, you heard
me call you a name," and then asked him to step outside, which CW took
as a "threat and an invitation to a fight."
Also, on May 16, 2007, the Lead Patient Services Assistant filled
out a report for the RMO and indicated that Complainant said to her,
"I'm going to kick [CW's] ass one day." Other employees at the facility
completed reports for the RMO indicating that a verbal altercation between
Complainant and CW took place, and Complainant said to CW, "Let's take
it outside." Subsequently, effective May 18, 2007, Complainant was
temporarily detailed to the Gastroenterology Section of the Primary &
Ambulatory Care Line by the RMO.
On July 1, 2007, Complainant filed an EEO complaint alleging that he was
discriminated against on the bases of race (Black) and disability when:
1. in November 2004 through January 2005, he was subjected to harassment;
2. a former coworker had pursued his medical records in August 2005;
3. he was asked, "you didn't commit suicide yet?" by a nurse;
4. a patient complaint was supported by a coworker in March 2006;
5. coworkers put him on speaker phone in an attempt to catch him being
rude in March 2006;
6. there was a garnishment of a portion of his check enforced by payroll
in June 2006;
7. he was investigated by the police and security service;
8. he did not receive an award between December 2006 to January 2007;
9. he was harassed by management after he asked management why he did
not receive an award in January 2007;
10. there was a constant tampering with his worksite from May 2006 to
April 2007; and
11. on May 18, 2007, he was temporarily detailed to the Gastroenterology
Section of the Primary & Ambulatory Care Line after he was harassed by
CW.
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. Over the Complainant's objections, the AJ assigned
to the case granted the Agency's March 27, 2008 motion for a decision
without a hearing and issued a decision without a hearing on September
30, 2008. 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.
The AJ found that the Agency properly dismissed claims (1)-(10) pursuant
to 29 C.F.R. � 1614.107(a)(2) and (a)(7). Specifically, the AJ found that
pursuant to 29 C.F.R. � 1614.105(a)(1) the claims were untimely because
Complainant failed to contact an EEO counselor within 45 days of the date
of these alleged discriminatory incidents. In this regard, the AJ found
that Complainant's May 21, 2007 contact with the EEO counselor was not
timely the claims because they occurred prior to April 5, 2007. The AJ
also noted the claims were discrete acts. Therefore, the AJ found that
claims (1)-(10) were properly dismissed by the Agency.
The AJ also noted that a complaint alleging a hostile work environment
will not be time barred if all acts constituting the claim are part
of the same unlawful practice and at least one act falls within the
filing period. In this regard, the AJ found that Complainant did not
establish that any act of harassment occurred within the 45 day time
period preceding his contact with the EEO counselor. The AJ found that
the May 18, 2007 involuntary detail was not an incident of harassment
and was a discrete act. As such, the AJ found that claims since claims
(1)-(10) occurred prior to April 5, 2007, they were outside of the 45
day time period.
The AJ additionally found that pursuant to 29 C.F.R. � 1614.107(a)(2)
the Agency properly dismissed claims (1)-(10) because Complainant did
not raise these claims to the EEO counselor prior to including them in
his EEO complaint. The AJ also noted that claims (1)-(10) were not like
or related to the May 18, 2007 issue he raised before the EEO Counselor
The AJ also noted that Complainant did not respond to the Agency's July
10, 2007 request for information. The AJ found that since Complainant
did not respond to this request, claims (1)-(10) were further properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(7).
Regarding claim (11), the AJ determined that Complainant failed to
establish a prima facie case based on his disability and race. In
particular, the AJ found that Complainant failed to establish that
he was treated differently than any similarly situated employees
outside of his protected classes. Further, the AJ found that the Agency
articulated legitimate nondiscriminatory reasons for its actions. Namely,
that the RMO had a reasonable and good faith belief that Complainant
demonstrated behavior that made it prudent to separate him and CW pending
an investigation. Additionally, the AJ found that the RMO had reports not
only from Complainant and CW, but from other employees describing the
events that occurred on May 16, 2007. Lastly, the AJ noted that there
was no evidence that either the Complainant's race or his disability
was a factor in the RMO's decision to temporarily detail him to the
Gastroenterology Section.
CONTENTIONS ON APPEAL
Complainant has not submitted a brief on Appeal.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the Agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact. 29
C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if
it has the potential to affect the outcome of the case. In this matter,
we find that summary judgment was proper, in that no genuine issues
of material fact remained. See also Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
Dismissal of Claims (1)-(10)
The AJ dismissed claims (1)-(10), among other reasons, on the grounds that
the claims were not like or related to the one issue raised before an EEO
Counselor. EEO regulations state that an agency shall dismiss a complaint
"that raises a matter that has not been brought to the attention of a
Counselor and is not like or related to a matter that has been brought
to the attention of a counselor." 29 C.F.R. � 1614.107(a)(2). The record
reveals that the only matter Complainant raised before the EEO Counselor
concerned the May 18, 2007 issue when he was temporarily detailed to the
Gastroenterology Section due to his altercation with CW. Complainant
made no mention of any other issues to the Counselor. On appeal,
Complainant does not address whether the issues raised in his Formal
Complaint were not like or related to the issue he raised before the EEO
Counselor. Accordingly, we find that the AJ's decision dismissing claims
(1)-(10), on the grounds that they are not like or related to the one
issue he sought EEO counseling on, was appropriate.
Claim (11)
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); Pavelka v. Department of the Navy,
EEOC Request No. 05950351 (December 14, 1995).
Assuming arguendo that Complainant established a prima facie case
based on his disability and race, we find that the Agency articulated
legitimate nondiscriminatory reasons for its actions. Namely, that due to
written reports from Complainant, CW, and other employees, Complainant
demonstrated behavior on May 18, 2007, that justified separating him
and CW pending an investigation. Complainant now bears the burden of
proving by a preponderance of the evidence that the Agency's articulated
reasons were a pretext for discrimination. Complainant can do this
directly by showing that the Agency's preferred explanation is unworthy
of credence. Burdine, 450 U.S. at 256. Upon review, we concur with the
AJ's determination that Complainant failed to provide any evidence of
pretext in the record. Furthermore, we find that the record is devoid of
any evidence that the Agency's actions were motivated by discriminatory
animus towards Complainant's disability or race.
Finally, to the extent that Complainant is alleging that he was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Fork-lift Systems, Inc., 510 U.S. 17 (1993) that Complainant's
claim of hostile work environment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). A finding that Complainant was subjected to a hostile work
environment is precluded by our determination that Complainant failed
to establish that any of the actions taken by the Agency were motivated
by discriminatory animus. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue
of material fact is in dispute. 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 order adopting the AJ's 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
_6/22/10_________________
Date
2
0120091013
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091013