0120090121
02-04-2009
Richard T. Murray, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Richard T. Murray,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090121
Agency No. 200P06682008100549
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 3, 2008 final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency discriminated against him on the basis
of disability (Post Traumatic Stress Disorder and recent eye surgery)
when, on September 13, 2007, he was terminated from employment during
his probationary period.
The record reflects that complainant began work in September 2006.
In December 2006, he received a 90-day appraisal of "fully successful"
from his immediate supervisor, the Housekeeping Foreman (S1). S1 advised
complainant that he needed to pay more attention to the details of his
work.
In April or May 2007, an incident occurred involving complainant and
a VA police officer. While complainant was vacuuming, the officer
walked up behind complainant and startled him. Complainant remarked
to the officer that 30 years ago he would have been dead, sneaking up
behind a person like that. The officer reported the remark to the Chief
of Police. Complainant wrote a letter of apology to the Chief of Police
and gave a copy to his supervisor. Complainant stated that his response
to being startled was exacerbated by his PTSD. Complainant stated that
after that incident, his relationship with his supervisor was not as
good as it had been.
Complainant's second-line supervisor, the Chief, Environmental Management
Services, (S2) stated that complainant was terminated for his performance,
not his conduct. Specifically, S2 affirmed that during an inspection he
noticed some deficiencies in the complainant's work. He pointed them out
to complainant, who replied that he did not have time to correct them.
S2 also stated that he informed S1, about this incident at the time
it occurred. The record shows that S2's involvement in complainant's
termination was limited, but he did approved S1's recommendation to
terminate complainant. In addition, S2 personally notified complainant
of his termination.
The record also shows that S1 repeatedly provided training to complainant.
When complainant's work was deficient, S1 offered him additional training,
but complainant always stated that he did not need it. Yet according
to both S1 and S2, complainant did not perform his duties very well.
For example, once when he cleaned the Operating Room complainant left
blotches of blood on the operation table. According to S1, complainant
had a very good attitude but could not retain the training he received.
S1 further asserts that he counseled complainant about his performance
"numerous times." While complainant was able to satisfactorily
perform a particular task, if he was away from a task for several
days, he could not then remember how to do it properly. In addition,
S1 stated that complainant's attention to detail was not very good.
S1 further stated that complainant was a willing and hard worker, but
that he lacked confidence. Moreover, according to S1, complainant was
afraid of making mistakes and got distracted very easily. S1 further
stated that complainant never reached the ability to perform his
duties satisfactorily without supervision, which is a requirement of
the Housekeeping Aid position. In addition, S1 stated that he offered
complainant an alternative position in the laundry room, but complainant
was not interested in working there. S1 stated that he gave complainant
his 90-day appraisal, at least three verbal counseling sessions, and
one written counseling memorandum.
We find that the documentary evidence corroborates the affidavits of
the complainant's supervisors. Moreover, complainant failed to present
evidence of pretext or discriminatory animus.1 The record shows that
complainant was removed because he did not perform his duties in an
acceptable manner. Despite his positive attitude, he was unable to
retain information long enough to become a reliable Housekeeping Aid.
We record lacking in evidence to establish that complainant's termination
was connected to his claimed disabling condition. 2
The agency's final decision finding no discrimination 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 4, 2009
Date
1 We note that complainant does not allege, nor does the record reflect,
that he requested or was denied reasonable accommodation.
2 We assume for the purposes of this decision that complainant met his
burden of establishing that he was an individual with a disability,
within the meaning of the Rehabilitation Act.
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0120090121
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090121