Preston W. Johnson, Complainant,v.Erik K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 20, 2009
0720090002 (E.E.O.C. Feb. 20, 2009)

0720090002

02-20-2009

Preston W. Johnson, Complainant, v. Erik K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Preston W. Johnson,

Complainant,

v.

Erik K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0720090002

Hearing No. 443200700026X

Agency No. 200J06952006102748

DECISION

Following its October 7, 2008 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).

On appeal, the agency requests that the Commission affirm its rejection

of an EEOC Administrative Judge's (AJ) finding of 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,

the Commission REVERSES the agency's final order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

a Health Technician at the agency's Medical Center facility in Milwaukee,

Wisconsin. On July 21, 2006, complainant filed an EEO complaint alleging

that he was discriminated against on the basis of reprisal for prior

protected EEO activity under Title VII when:

1. In June 2006, complainant was not selected for the position of

Domiciliary Assistant (the position).

At the conclusion of the investigation, complainant was provided with

a copy of the report of investigation and requested a hearing before an

EEOC Administrative Judge (AJ). Following the hearing the AJ issued a

decision on August 29, 2008. Specifically, the AJ found that complainant

established a prima facie case of reprisal when he was not selected for

the position and it was instead offered to a coworker (S) who had not

applied for the position. The AJ found that agency officials were aware

of complainant's prior EEO activity because EEO materials from an earlier

complaint were placed in complainant's personnel file. The AJ next

found that agency articulated a legitimate, nondiscriminatory reason for

its action, namely that the selection was cancelled and the position was

filled by allowing S, who had not applied for the position but who worked

as a Domiciliary Assistant on a different shift, to change shifts to match

the schedule required by the position. The AJ further found, however,

that the agency's articulated reason was a pretext for reprisal. The AJ

found that complainant was one of the top candidates for the position and

"would have excelled in his interview had he been given an opportunity"

AJ's Decision, p. 6. The AJ further noted that agency policy required

that employees seeking to change shifts had to submit a request for

such a change, but that there was no evidence that S had submitted such

a request. Id. In addition the AJ found that the agency's contention

that agency personnel twice inadvertently misplaced complainant's

application to be not credible. Id. The AJ ordered the agency to offer

complainant the position in question, with back pay and interest, and

ordered the agency to pay $1,500.00 in nonpecuniary compensatory damages.

In addition, the AJ awarded entitlement to attorney's fees.

The agency subsequently issued a final order rejecting the AJ's finding

that complainant proved that he was subjected to discrimination as

alleged. The agency further appealed the AJ's decision to the Commission.

On appeal, the agency argues that the AJ erred in finding that complainant

was subjected to an adverse action, and erred in finding that agency

officials were aware of complainant's prior EEO activity. In addition,

the agency argues, there is no evidence that complainant would have been

hired for the position since six other applicants scored higher than did

complainant. The agency has not disputed the AJ's award of nonpecuniary

compensatory damages and therefore that issue is not before us on appeal.

Complainant contends that he was subjected to an adverse action when he

was not selected for a position to which he had applied while another

coworker who had not applied for the position was ultimately offered

the position. Complainant next argues that the AJ ruled as a matter of

law that agency officials were aware of complainant's prior EEO activity

based on the fact that EEO documents had been placed in complainant's

personnel file and the agency tried to conceal this fact during discovery.

Complainant asks that the Commission sanction the agency for raising this

argument on appeal, contrary to the AJ's orders. Finally, complainant

argues that the fact that complainant was not the highest scoring

candidate is not probative and that employers do not "always hire the

applicant with the highest rating score." Complainant's Appellate Brief,

p. 8.

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, � VI.B. (November 9, 1999).

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). Complainant

must initially establish a prima facie case by demonstrating that he or

she 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). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. 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).

We note initially that, while the selection for the position was

cancelled, complainant nevertheless states a valid claim. This is not

a case where the selection for a position is cancelled and the position

is not offered to anyone. Instead, the selection was cancelled and

the position was offered to S, a coworker who had not applied for

the position. The Commission has held that "a claim of discriminatory

non-selection is not appropriate for dismissal merely because no selection

is made where, as here, the complainant contends that the initial

announcement was cancelled for discriminatory reasons, and after the bid

was canceled, a selection was made." Lall v. Department of the Navy, EEOC

Request No. 05A00064 (April 24, 2000). Furthermore, the agency's argument

that complainant "can in no way show that individuals without prior EEO

activity fared any better," Agency's Appellate Brief, p. 3, misconstrues

the legal standard for establishing a prima facie case of reprisal.

In this regard we note that Complainant can establish a prima facie case

of reprisal discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination. Shapiro v. Social

Security Administration, EEOC Request No. 05960403 (Dec. 6, 1996) (citing

McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal claim,

and in accordance with the burdens set forth in McDonnell Douglas,

and Hochstadt v. Worcester Foundation for Experimental Biology, 425

F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and

Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case

of reprisal by showing that: (1) he engaged in a protected activity;

(2) the agency was aware of his protected activity; (3) subsequently,

he was subjected to adverse treatment by the agency; and (4) a nexus

exists between the protected activity and the adverse treatment. Whitmire

v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25,

2000). Contrary to the agency's argument on appeal, a complainant in

a reprisal claim does not need to show that others were treated better.

As regards the agency's argument that agency officials were unaware of

complainant's EEO activity, the AJ found that agency's officials were

aware of such activity based on the fact that a settlement agreement

from complainant's prior EEO complaint was placed in complainant's

personnel file. The record shows that a Labor Relations Specialist

found the settlement agreement in complainant's personnel file sometime

between February and April, 2007. Accordingly, the AJ's finding that

agency officials were aware of complainant's prior EEO activity is

supported by substantial evidence. For all of the above reasons,

we find that complainant established a prima facie case of reprisal.

Complainant's motion to sanction the agency for raising this argument

on appeal, however, is denied.

The burden next shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its action. Burdine, 450 U.S. at 253.

The AJ found that agency officials articulated such a reason when

the Program Manager testified that complainant was not selected for

the position because the application process was cancelled and the

position was filled by offering it to S, who already held an identical

position on a different shift, and merely allowing S to change his shift.

Hearing Transcript, pp. 111-12.

The AJ further found, however, that complainant successfully established

that the agency's articulated reason was a pretext for discrimination.

Specifically, the AJ found that, contrary to agency policy, S did not

submit a written request for a shift change, yet was nevertheless offered

the position. In addition, the AJ found that complainant's application

was twice lost or misplaced by agency officials. The AJ found that

such factors, in addition to the fact that complainant's prior EEO

settlement was placed in his personnel file, established that the agency's

articulated reason was a pretext. As regards S's failure to submit a

written request for a shift change, we note that S testified that he

did not submit a written request or application, see Exhibit B, p. 21,

and that "the next thing I heard was that I had gotten the position,

I had gotten the shift change." Id., p. 22. We therefore find that

the AJ's findings are supported by substantial evidence and we find no

basis to disturb the AJ's decision.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, the Commission REVERSES

the agency's final order and remands the matter to the agency to take

corrective action in accordance with this decision and the order below.

ORDER (C0900)

The agency, if it has not already done so, is ordered to take the

following remedial action:

I. Within forty-five1 (45) days of this decision becoming final, the

agency shall offer to promote complainant to the position of Domiciliary

Assistant at the Milwaukee VAMC (or some other mutually agreeable

position/facility). Complainant shall be given a minimum of thirty

(30) calendar days from receipt of the offer within which to accept or

decline the offer. Failure to accept the offer within the time period

set by the agency will be considered a rejection of the offer, unless

complainant can show that circumstances beyond his control prevented a

response within the time limit.

II. Within sixty (60) days of this decision becoming final, the

agency shall determine and pay complainant back pay (with interest, if

applicable) and other benefits due complainant pursuant to 29 C.F.R. �

1614.501. The agency's determination shall be based on the fact that,

absent retaliation, complainant would have been selected for a Domiciliary

Assistant position in June 2006, and subsequently would have received all

career ladder promotions to which an employee who performed in a fully

successful manner was entitled. If complainant declines to accept the

promotion, the back pay period for the Domiciliary Assistant position

shall end on the date he declines the offer of promotion.

III. Within forty-five (45) days of this decision becoming final,

the agency shall pay complainant the sum of $1,500.00 in nonpecuniary

compensatory damages.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington,

DC 20013. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant

has the right to file a civil action on the underlying complaint in

accordance with the paragraph below entitled "Right to File A Civil

Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

POSTING ORDER (G0900)

The agency is ordered to post at its VAMC, Milwaukee, Wisconsin facility

copies of the attached notice. Copies of the notice, after being

signed by the agency's duly authorized representative, shall be posted

by the agency within thirty (30) calendar days of the date this decision

becomes final, and shall remain posted for sixty (60) consecutive days,

in conspicuous places, including all places where notices to employees are

customarily posted. The agency shall take reasonable steps to ensure that

said notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

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 (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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

1 We note that the AJ gave the agency thirty (30) days to comply with

this order. We find, however, that the agency may require more time to

comply.

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2

0720090002

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0720090002