0120090949
05-20-2009
Pedro J. Torres, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Pedro J. Torres,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090949
Agency No. 200H-0595-2008102766
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's November 24, 2008 final decision concerning his equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On March 2, 2008, complainant was hired as a Housekeeping Aide, WG-3566-2, at the agency's VA Medical Center in Lebanon, Pennsylvania, subject to a one-year probationary period.
On July 17, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the bases of national origin (Hispanic), disability (intermittent bipolar), and age (52) when:
on April 25, 2008, management terminated him from his Housekeeping Aide position during his probationary period.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision on November 24, 2008, pursuant to 29 C.F.R. � 1614.110(b).
In its November 24, 2008 final decision, the agency found that complainant did not establish a prima facie case of national origin, disability and age discrimination.1 The agency nonetheless found that management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
The Assistant Chief of EMS (AC) stated that he was the deciding official to terminate complainant during his probationary period for inappropriate behavior and conduct; and failure to follow instructions. Specifically, AC stated he received "numerous" complaints from female employees concerning complainant's inappropriate behavior. AC stated after conducting a fact-finding, he met with complainant and his representative on April 4, 2008. AC stated that he reiterated the agency's policy concerning sexual harassment in the work place. Specifically, AC stated that he "emphasized the proper procedure involving entering patients' rooms when the doors are closed. I specifically stated...not to knock or enter any patient room or exam room with door closed, including offices." AC stated that he also instructed complainant to stay focused on his assignments; build a rapport with his co-workers; avoid personal questions and comments that may be appropriate; and not to invade female employees' personal space. AC stated that during the meeting, complainant "denied all accusations and complaints stated...all complaints were false."
Further, AC stated that on April 17, 2008, a female housekeeper reported that complainant undressed in front of her after she asked him to undress behind a plastic curtain that led to the men's restroom. AC stated that complainant denied the incident by stating that he "never took off his speedos while he undressed. The housekeeper did not see him." AC stated that he then provided the Chief of EMS and Human Resources "with report of contacts, fact-finding questions and answers. Statements made by witnesses etc. After much discussion and consideration, I made the decision to recommend the complainant be terminated from employment during probationary period." Furthermore, AC stated that complainant's national origin, disability, and age were not factors in his determination to terminate complainant during his probationary period.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. We further find that complainant has not demonstrated that these reasons were a pretext for discrimination.
On appeal, complainant asserts that he once entered a room by knocking, that a technician opened the door, and that complainant proceeded to get a trash can without ever looking at the patient; that he undressed in the mens' locker room when he was surprised by the appearance of a female janitor; that in a tight closed space, in order to "learn job requirements. . . .[he was] required . . . to get closer to a [female employee]; that he did nothing wrong by inviting men and women to a wellness center; and that it was his duty to be at a work station where he was purported staring at a female employee.
We have considered complainant's arguments on appeal. Nevertheless, the record supports the agency's determination that it properly discharged complainant from agency employment for the reasons set forth above. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
May 20, 2009
__________________
Date
1 For purposes of analysis only, and without so finding, the Commission presumes that complainant is an individual with a disability within the meaning of the Rehabilitation Act.
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0120090949
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090949