Murray C.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 14, 2018

0120161525 (E.E.O.C. Jun. 14, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Murray C.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120161525

Hearing No. 430-2013-00323X

Agency No. 200I-0319-2013100151

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated March 11, 2016, finding no discrimination
regarding his 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. For the following reasons,
we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the relevant time, Complainant was employed by the Agency as a Senior Veterans Service
Center Representative (SVSR), GS-10 at its Regional Hospital in Columbia, South Carolina. On
November 5, 2012, Complainant filed his complaint alleging discrimination in reprisal for prior
EEO activity when:

(1) By memorandum dated March 12, 2012, he was issued a proposed admonishment;

(2) By memorandum dated July 3, 2012, he was issued a proposed suspension; and

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.
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(3) By memorandum dated August 2, 2012, he was notified that the decision was made to
suspend him for 10 days, effective August 6 - 10, 2012, and August 13 - 17, 2012.

The record indicates that at the conclusion of the investigation, Complainant requested a hearing
before an EEOC Administrative Judge (AJ). On February 5, 2016, the AJ, after a hearing, issued
a decision finding no discrimination, which was implemented by the Agency in its final order.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Despite
Complainant’s contentions on appeal, we do not find any improper conduct on the part of the AJ
during hearing process.

In this case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents.2 At the relevant time, Complainant was a GS-10, SVSR at the
Agency’s Regional Hospital in Columbia, South Carolina.

Regarding claim (1), the AJ stated that Complainant was issued a proposed admonishment on
March 12, 2012, for being absent without leave on January 23, 2012. Complainant
acknowledged that he did not get a prior approval from his supervisor (S1) for his unscheduled
personal leave at issue.

Regarding claim (2), Complainant’s second level supervisor (S2) indicated that he issued
Complainant the July 3, 2012 proposed suspension at issue. Therein, S2, rescinding the March
12, 2012 proposed admonishment, described in claim (1), was proposing to suspend
Complainant for 10-calendar days for: taking leave without prior approval on January 23, 2012,
and May 2, 2012; being absent from 8:45 am through 10:45 am during his scheduled work hours

2 It is noted that the AJ included as a discussion, without amending the complaint, a claim of race
based discrimination in the instant case because Complainant presented his race (African-
American) throughout the complaint and testimony.
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on May 10, 2012; his disrespectful comments towards S1 on May 24, 2012; and his disrespectful
conduct toward his coworker on June 12, 2012.

Specifically, S1 stated that on May 24, 2012, while S1 was collecting production data,
Complainant told S1 “I am not going to deal with you today” and “yeah, are you hard of hearing;
get out of my cubicle; and get out of my way.” The AJ stated that on June 12, 2012,
Complainant and his coworker had a disagreement concerning claim processing procedures. The
coworker testified that Complainant yelled at her in a hostile manner on the phone and in her
cubicle area. The coworker testified that she was concerned for her personal safety and she
called for assistance from S1 which prompted Complainant to leave her cubicle and return to his
work area. Complainant acknowledged that he was upset because the coworker refused to
process a certain case as he instructed and he then had a heated discussion with her about her
refusal to process the case. The AJ did not find Complainant’s contentions to be credible
because a number of employees provided statements that corroborated the coworker’s account of
what transpired with him.

Regarding claim (3), Complainant’s Assistant Director issued Complainant his August 2, 2012
decision to suspend Complainant for 10-calendar days, effective August 6 - 10, 2012, and
August 13 - 17, 2012, as set forth in claim (2), above.

The AJ stated that Complainant failed to show by a preponderance of the evidence that the
Agency’s proffered reasons were pretextual. After a review of the record, we find that
Complainant failed to show that there were any similarly situated employees not in his protected
groups who were treated differently under similar circumstances. Upon review, we find that the
AJ’s factual findings of no discriminatory intent are supported by substantial evidence in the
record.3

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, the Agency’s final order finding of no discrimination is AFFIRMED because the AJ’s
decision is supported by substantial evidence.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

3 The AJ noted that on July 26, 2013, Complainant was subsequently removed from his position
for disrespectful conduct and on May 30, 2014, an arbitrator upheld the Agency’s decision to
remove him. This removal incident is not at issue.
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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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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

June 14, 2018
Date