Robert Davis, Complainant,v.Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 16, 2009
0120083852 (E.E.O.C. Jan. 16, 2009)

0120083852

01-16-2009

Robert Davis, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.


Robert Davis,

Complainant,

v.

Dr. James B. Peake,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120083852

Hearing No. 420200800019X

Agency No. 200106192006103768

DECISION

On September 11, 2008, complainant filed an appeal from the agency's

August 11, 2008 final order 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. The appeal is deemed timely and is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the agency's final order.

BACKGROUND

At all times relevant to this complaint, complainant worked as a

Respiratory Therapist, GS-7, at the agency's Central Alabama Veterans

Health Care Center in Tuskegee, Alabama.

On October 30, 2006, complainant filed a formal complaint of

discrimination. Complainant alleged discrimination on the basis of race

(African American), and in reprisal for prior protected EEO activity

when:

1. since 1998 and as recent as January 17, 2007, he has been subjected

to constant changes in his work schedule.

Additionally, complainant alleged that he was subjected to a hostile

work environment when:

2. on January 23, 2007, he was instructed to report to the Montgomery

Campus to testify about illegal selling and use of drugs on government

property;

3. on January 22, 2007, he had to submit a urine sample for drug testing

and he was advised that he was being investigated for illegal selling

and use of drugs on government property;

4. on September 30, 2006, he became aware that preferential treatment

is given to White employees in matters concerning promotion and salary;

5. on September 5, 2006, the Director did not act in good faith when

he refused to address issues that were raised in a negotiated grievance

procedure;

6. on or about August 9, 2006, he became aware that on December 19,

2005, and March 29, 2006, a supervisor sent explicit racial e-mails to

white employees referring to "red-necks";

7. on or about August 9, 2006, he became aware that on April 3, 2006,

a supervisor attempted to move a White employee to the West Campus;

8. on or about August 9, 2006, he became aware that two employees were

instructed to stay away from him because he is a "trouble maker";

9. on or about August 9, 2006, he became aware that in 1998, he served

a two-year probationary period while other employees only had to serve

a one-year probationary period;

10. on or about August 9, 2006, he became aware that in 2004, jobs for

which he was qualified were frozen and/or unannounced until a White

employee completed his probationary period;

11. on or about August 9, 2006, he became aware that around March 2005,

he was subjected to racial slurs; and

12. since August 2006, he has received inadequate supervision and has

been told that there would not be a supervisor at the East Campus.

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). Complainant timely

requested a hearing, which was held March 20, 2008. thereafter,

the AJ issued a decision in favor of the agency on July 21, 2008.

The AJ found that complainant failed to prove that he was subjected to

discrimination as alleged. Specifically, the AJ found that complainant

failed to establish a prima facie case of discrimination and failed to

establish that he was subjected to a hostile work environment. The agency

subsequently fully implemented the AJ's decision. Complainant now

appeals to the Commission.

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).

On appeal, complainant challenges the agency's credibility, stating that

the AJ raised concerns about the credibility of the agency, although the

AJ did not raise them in his final decision. We find that even though

the AJ questioned some of the agency's actions during the hearing stage,

the AJ's decision reflects the AJ's ultimate credibility determination.

The evidence in the record support the AJ's ultimate credibility

determination, therefore we will not disturb it here.

Disparate Treatment

Complainant alleged that he was subjected to discrimination on the bases

of race and in reprisal for prior protected EEO activity when his schedule

was constantly changed between 1998 and January 17, 2007. In the absence

of direct evidence of discrimination, a claim of disparate treatment

is examined under the three-part 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 case 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).

Here, the agency articulated a legitimate, nondiscriminatory reason for

its actions. Specifically, the agency articulated that all Respiratory

Therapists at the East Campus were required to work rotating schedules,

and each continually had their schedules changed. The agency asserts that

its decision had nothing to do with race or prior protected EEO activity,

but was merely a requirement of the position at that particular facility.

Complainant must now establish, by a preponderance of the evidence,

that the agency's articulated reasons for its actions are pretext for

discrimination. We agree with the AJ that complainant failed to offer

any evidence that would establish that discriminatory animus more likely

than not played a role in the agency's decision to change complainant's

schedule. The record reflects that all of the Respiratory Therapists'

schedules were continually changed due to the rotating schedule, and

complainant's race and prior protected EEO activity were not taken

into account. Therefore, we find that complainant failed to establish

pretext, and we affirm the finding that race and reprisal discrimination

did not occur.

Harassment

The AJ found that complainant failed to establish that the alleged acts

of harassment were directly related to a protected basis, or that the

alleged harassment was severe or pervasive enough to constitute a hostile

work environment. Harassment of an employee that would not occur but

for the employee's race, color, sex, national origin, age, disability,

or religion is unlawful, if it is sufficiently-severe or pervasive.

Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August

14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997). It is also well-settled that harassment based on an

individual's prior EEO activity is actionable. Roberts v. Department

of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).

A single incident or group of isolated incidents will generally not be

regarded as discriminatory harassment unless the conduct is severe.

Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).

Whether the harassment is sufficiently severe to trigger a violation of

Title VII must be determined by looking at all of the circumstances,

including the frequency of the discriminatory conduct, its severity,

whether it is physically threatening or humiliating, or a mere offensive

utterance, and whether it unreasonably interferes with an employee's

work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23

(1993); Enforcement Guidance on Harris v. Forklift Systems, Inc.,

EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harasser's conduct

should be evaluated from the objective viewpoint of a reasonable person

in the victim's circumstances. Id.

In the instant case, we find that the incidents complained of, even if

true, do not rise to the level of a hostile work environment. Complainant

failed to offer evidence that would connect the alleged harassment

to his race or prior protected activity, nor was complainant able to

establish that the alleged harassment was severe or pervasive enough to

unreasonably interfere with his work performance. A preponderance of

the evidence in the record does not support complainant's allegations.

Therefore, complainant failed to establish that harassment occurred.

Substantial evidence supports the AJ's finding of no discrimination in

the complaint.

CONCLUSION

We AFFIRM the agency's final decision finding no discrimination.

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

January 16, 2009

Date

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0120083852

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120083852

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