0120092792
12-17-2009
O'Neil O. Lawrence, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
O'Neil O. Lawrence,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092792
Agency No. 200H05282008103966
DECISION
On June 9, 2009, complainant filed an appeal from the agency's April 17,
2009 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. 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 agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a probationary Food Service Worker, WG-2, at the agency's Western
New York Healthcare System in Buffalo, New York. On August 12, 2008,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of race (Black), disability1 (unspecified), and
reprisal for prior protected EEO activity under a statute that was
unspecified in the record when:
1. On July 19, 2008 complainant was notified he was not selected for
the position of Food Service Worker WG7408-1 (target 2); and
2. on August 14, 2008 complainant was terminated from his part-time
position of Food Service Worker WG-2.
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 pursuant to 29
C.F.R. � 1614.110(b). The decision concluded that complainant failed to
prove that he was subjected to discrimination as alleged. Specifically,
the agency found that complainant established a prima facie case of
discrimination based on race and reprisal, but not disability. The agency
further found that the agency articulated legitimate, nondiscriminatory
reason for its actions and that complainant failed to establish that
the agency's articulated reasons for its actions were a pretext for
discrimination or reprisal. With regards to the nonselection, the agency
found that complainant was not selected for the position because he had
scored the lowest of all the interviewees for the position, while the
selectee had scored the highest. As regards the termination, management
officials said that complainant had been seen leaving work before the
end of his shift. They further said that while others who had also left
work early had not been terminated, they were not probationary employees,
like complainant, and hence discipline for them was less harsh. On appeal,
complainant argues that his qualifications are superior to those of the
selectee.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
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).
With regards to the nonselection, the interviewer (RMO1: Caucasian, no
claimed disability) said that he formulated the questions and conducted
the interviews of all of the candidates who received interviews.
See Report of Investigation (ROI), Affidavit B4. He said that both
complainant and the eventual selectee "had credible work experience,
education and training in food service. [The selectee] displayed
excellent customer service skills on a daily basis. [The selectee]
received a 'Spotlight Award' from another department recognizing his
efforts. [The selectee] showed a positive attitude to all co-workers and
supervisors and generally performed in a desirable manner every day." Id.
RMO 1 said that complainant, on the other hand, admitted to missing five
days of work in the last 9 months, see id., had had "several instances
of not getting along with fellow workers, work leaders and supervisors.
. . . - had been disruptive during team meetings and was borderline
insubordinate to both supervisors. . . . [and that] while discussing
his qualities . . . complainant was extremely confident in that he was
the best person for the job." Id. A review of the interview sheet
shows handwritten notes on complainant's sheet repeating these negative
traits, although it is unclear from the record when these handwritten
notes were written, by whom, and how the author of the notes reached
such conclusions.
The Selecting Official (RMO2: Caucasian, no claimed disability) said
that the selectee had the best customer service skills and received the
Spotlight Award from another department, was able to get along with others
and was dependable. See ROI, Affidavit B5. RMO2 further stated that
she selected the candidate who scored the highest during the interview.
See id.
With regards to the removal, RMO1 said that he conducted an investigation
to look into allegations that Food Service Workers were leaving work
before the end of their shifts and he observed "on multiple occasions,"
ROI, Affidavit B4, complainant and others leaving early. See id.
RMO1 further stated that the employees, including complainant, were
interviewed and did not tell the truth about their actions and that
complainant was terminated for unacceptable conduct, consisting of lack
of candor and leaving work early during his probationary period. See id.
RMO1 said that another probationary employee was also terminated for the
same reason, and that within the past two years other employees who also
left work early were not terminated because they were not probationary
employees. See id. RMO2, the official responsible for the removal,
repeated much of RMO1's comments. See ROI, Affidavit B5.
Once the agency has articulated a legitimate, nondiscriminatory reason
for its actions, complainant, to ultimately prevail, 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); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
With regards to the nonselection, complainant argues that he is better
qualified than the selectee. Complainant maintains that he has worked in
the Food Service industry for over 20 years "working with all types of
modified diets, taking care of patients, being a food service manager,
having a [sic] A.A. and a B.A. in food and beverage management." ROI,
Affidavit A. A coworker (CW: Caucasian, unspecified physical disability)
said that he believed complainant was better qualified than the selectee.
See ROI, Affidavit B. A review of the record shows that the selectee
held a degree in Restaurant and Hotel Management and complainant has
shown on appeal that he holds a degree in Food and Beverage Management.
See Complainant's Appeal Brief. While complainant's qualifications are
impressive, complainant has not shown that his qualifications are so
demonstrably superior to those of the selectee as to establish that the
agency's reason for choosing the selectee is a pretext for discrimination
or reprisal. Nor has complainant presented any evidence rebutting the
agency's contention that he scored poorly during the interview.
With regards to the removal, CW said that he and complainant were removed
for leaving work early while other employees who also left work early were
not removed. As noted above, however, RMO1 indicated that other employees
who were not removed despite leaving early were not probationary employees
and hence were not similarly situated with complainant and CW.
Following a review of the record we find that complainant has not met
his burden of establishing, by a preponderance of the evidence, that the
agency's articulated reasons are pretextual or that the agency engaged in
discrimination or reprisal when he was not selected for the Food Service
Worker position and when he was removed from the agency. Based on a
thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we therefore AFFIRM the FAD.
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
December 17, 2009
__________________
Date
1 For purposes of this decision the Commission assumes without finding
that complainant is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
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0120092792
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092398
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