0120140182
11-16-2016
Lowell H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lowell H.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140182
Hearing No. 520-2012-00045X
Agency No. 200H-0620-2011-102200
DECISION
On October 18, 2013, Complainant filed an appeal from the Agency's July 22, 2013, 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 timely2 and accepted pursuant to 29 C.F.R. � 1614.405(a). The Commission AFFIRMS the Agency's final decision for the following reasons.
ISSUE PRESENTED
The issue presented herein is whether Complainant has proven discrimination by preponderant evidence based on race (African-American), color (black), sex (male), and reprisal (prior EEO activity).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resource Specialist (HR Specialist), GS-12, at the Agency's Hudson Valley Veterans Administration Health Care System in Montrose, New York. On April 18, 2011, he filed an EEO complaint alleging discrimination on the bases of race (African-American), color (black), sex (male), and reprisal (prior Title VII EEO activity) when:
(1) on February 10, 2011, he received a three-day suspension, which he served from February 27, 2011, through March 1, 2011;
(2) on March 3, 2011, his request for access to CyberFEDS3 was denied;
(3) on February 24 - 25, 2011, and March 31 - April 1, 2011, he was not selected to act as Chief of Human Resources Management Service (HRMS) in his first-line supervisor's (S1's) stead while she was out of the office;
(4) in April 2011, S1 denied his request to have his electronic files accessed "by permission only" like S1 and another HR Specialist; and
(5) on July 8, 2011, he was not selected to act in S1's stead while she was out of the office.
The Agency accepted the complaint for investigation and, at the conclusion thereof, provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b), in which it found Complainant failed to prove discrimination as alleged. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
In support of his appeal, Complainant argues that the Agency's decision should be overturned and that the final Agency decision came to an incorrect conclusion. The Agency's contentions on appeal reiterate the findings of the Agency's final decision, and request that we affirm the conclusion that Complainant did not establish that he was discriminated against as alleged.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume, without so finding, Complainant has established prima facie cases of race, color, sex, and reprisal discrimination.
We now consider whether the Agency stated legitimate, nondiscriminatory reasons for the actions alleged to be discriminatory. S1 stated that Complainant received a three-day suspension because he failed to follow proper leave procedures as well as mishandled a grievance and provided untruthful information when asked about his mishandling of the matter. Of note is that another employee, a White female, was issued an admonishment for improper use of Agency property and issued a three-day suspension for willful idleness. See ROI, Tabs C-3 and C-4.
While S1 stated that she did not recall Complainant asking her for access to CyberFEDS, she also stated that access to the database was not necessary for Complainant to perform his duties. The Associate Director of the facility, Complainant's second line supervisor (S2), stated that Complainant did not ask him for access to the CyberFEDS database. The former Chief of Human Resources stated that access to CyberFEDS is granted based upon an employee's need for access and that Complainant's position did not require access.
S1 stated that Complainant was not asked to act in her stead on February 24 - 25, 2011, and March 31, 2011 - April 1, 2011, because she had concerns about his management skills, reliability, customer service, and ability to deal with colleagues. She further stated that she did not believe Complainant was a good candidate to cover for her as she chooses employees to act in her place based on a proven track record of responsibility.
S1 stated that Complainant was not allowed to restrict his files and have them accessed "by permission only" because when he is out of the office, she cannot access the files she needs to service customers. She stated that while Complainant alleges that other employees had restricted their files, S1 stated that no other employee on her staff had their files accessible "by permission only" as she had access to all of her other employees' files. This assertion is supported in the file by testimonial evidence provided by S2.
S1 stated that she was scheduled to attend a conference beginning July 11, 2011, while Complainant was scheduled to be at a conference in Atlantic City, New Jersey that same week, and she asked another employee to cover for her. She explained that while the Atlantic City conference was subsequently cancelled, she did not change her plans to have the already-selected employee cover for her. S2 added that he had no confidence that Complainant could act in S1's place due to his previous offenses and misconduct and corresponding misrepresentations of those offenses, as well as his failure to take responsibility for his actions. Based on the foregoing, we find that the Agency has met its burden to provide legitimate, nondiscriminatory reasons for the actions alleged to be discriminatory.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried his burden to demonstrate pretext. In order to prevail on his claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward based on race, color, sex, and reprisal. Complainant presented no evidence, other than his own beliefs and assertions, to demonstrate pretext. However, such statements and speculation, without corresponding probative evidence, do not suffice to meet his burden. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that Complainant has failed to show that the Agency's stated reasons were pretextual, and did not establish that he was discriminated against, as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant failed to prove discrimination by preponderant evidence based on race, color, sex, and reprisal. Accordingly, the Agency's final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_11/16/16_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Though the final Agency decision is dated July 22, 2013, Complainant claims to have gained receipt on September 25, 2013. See Complainant's Notice of Appeal, EEOC Form 573. The Agency does not challenge this on appeal. There is no other evidence in the file, such as a Certificate of Service or certified return receipt card, indicating when the decision was actually mailed, or actually received. We shall therefore presume Complainant's appeal is timely.
3 CyberFEDS is a database maintained by a private company that has information on federal employment issues and case law, as well as "daily news, practical guidance, quick tips, standard forms, helpful tools, [and] reference manuals." See www.cyberfeds.com.
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