0120083891
02-20-2009
Michael D. Wormack, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Michael D. Wormack,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083891
Agency No. 200H-0646-2007102952
DECISION
Complainant filed an appeal with this Commission from the August 13,
2008 agency decision finding no discrimination.
Complainant alleges 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 the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d)
et seq. Specifically, complainant alleged that the agency discriminated
against him on the bases of race (Black), sex (male), and in reprisal
for prior protected EEO activity when:
1. On May 25, 2007, complainant was terminated from his position as a
grade level GS-5 Human Resources Assistant in which he served under a
term appointment.
2. On May 25, 2007, he was denied retention rights as a 5-point Veterans
Employment Opportunities Act of 1998 (VEOA) eligible veteran.
3. On July 13, 2007, complainant became aware that he was paid less than
his fellow credentialers.
4. On July 15, 2007, complainant became aware that he had not been
considered for various positions within the Department of Human
Resources.
5. Complainant was subjected to harassment as a result of claims 1-4.
In a decision, dated October 23, 2007, the agency dismissed claims 3 and
4. Regarding claim 3, the agency noted that the claim was the same claim
raised in Agency No. 200H-0646-2007100440 in which complainant stated that
on November 3, 2006, he was subjected to a violation of the EPA when he
was paid at a lower rate than a female co-worker. Regarding its dismissal
of claim 4, the agency stated that it requested additional information
from complainant regarding the positions for which he was not considered
and complainant's response was that there were several vacancies in the
department in which he was working in Pittsburgh and that he applied for
all of them. The agency noted that the agency records in its Pittsburgh
Healthcare System revealed that complainant applied for only one position
and that position was advertised under Vacancy Announcement No. 02-005PT;
that complainant previously raised his non-selection to that position
in Agency No. 200H-0646-2007100440; and that complainant withdrew the
complaint in Agency No. 200H-0646-2007100440.
In its decision finding no discrimination regarding remaining claims 1,
2, and 5, the agency determined that complainant failed to establish
a prima facie case on any of the prohibited bases. The agency also
concluded that the agency articulated a legitimate, nondiscriminatory
reason for its termination of complainant. In so concluding, the agency
noted that funding resources were needed to create a higher level position
to handle more complex actions than complainant was handling.
As an initial matter, the Commission notes that complainant did not
contest the agency's dismissal of a portion of his complaint on appeal.
Nonetheless, the Commission finds no reason to disturb the agency's
dismissal under 29 C.F.R. �1614.107(a)(1). Regarding its finding of
no discrimination as to the remaining claims, the Commission finds that
the agency did not discriminate against complainant. Assuming without
deciding that complainant established a prima facie case on each
basis, the Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions and, also, that complainant
was not subjected to discriminatory harassment. The record reveals
that complainant and Person A, a White female, were hired as temporary
employees to help review credentials under a newly created program called
VET PRO, a nationwide credentialing program for health care professionals
who had licenses and certifications. The record reveals further that
about 10 months after the start of VET PRO, the agency determined that it
would be better served by having VET PRO handled by permanent employees.
The record reveals that the two temporary positions were eliminated in
order to add one full-time permanent employee in its Staffing Section
and divide the VET PRO work among the Staffing Assistants. The record
reveals that the agency requested a permanent position and complainant
and Person A were terminated. The record also reveals that a Black male
was hired for the newly created, full-time, permanent position.
Regarding complainant's claim of a denial of retention rights,
the record reveals that as a term employee with only five points of
veterans' preference, complainant did not have retention rights and was
not entitled to apply for positions being filled under internal merit
promotion procedures and that because Person A had 10 points of veterans'
preference, she was entitled to apply under internal merit promotion
procedures and that she did so. The record also reveals that Person A
was selected for the position of a Claims Assistant in Fiscal Service,
effective the day following the termination of her term appointment.
Regarding complainant's claim of harassment, the Commission finds that the
reasons for the agency's actions, the actions upon which complainant's
claim of harassment is based, were legitimate and nondiscriminatory.
Moreover, there is no evidence that complainant was subjected to a
work environment that was discriminatorily hostile. To the extent that
complainant is also claiming that he was being harassed because of his
attendance and that he was absent from work because he had to care for
his terminally ill spouse, we find that complainant was questioned about
his absences, not for any discriminatory reason, but because complainant
did not follow the procedure for using or giving notice of leave.
The Commission finds that complainant has failed to show by
a preponderance of the evidence that the agency's reasons were mere
pretext to hide unlawful discrimination and that the agency's actions were
motivated by discriminatory animus. At all times, the ultimate burden of
persuasion remains with complainant to demonstrate by a preponderance of
the evidence that the agency's reasons were pretextual or motivated by
intentional discrimination. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). Complainant failed to
carry this burden. The Commission recognizes that an agency has broad
discretion to set policies and carry out personnel decisions, and it
should not be second-guessed by the reviewing authority absent evidence of
unlawful motivation. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259 (1981). The focus is on the agency's motivation,
not its business judgment. See Thomas v. Department of Transportation,
EEOC Appeal No. 01945798 (December 12, 1996) (citing Loeb v. Textron,
Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979)).
The agency's decision is AFFIRMED.
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
February 20, 2009
__________________
Date
2
0120083891
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120083891