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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