0120092017
09-03-2009
Sharon Scott, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sharon Scott,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092017
Agency No. 200I-0521-2008101084
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's March 9, 2009 final decision concerning an 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.
During the period at issue, complainant was employed as a Motor Vehicle Operator Van Driver, WG-6, at the agency's Police Service, VA Medical Center in Birmingham, Alabama.
On December 18, 2007, complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On February 29, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that she was subjected to harassment and a hostile work environment on the basis of sex (female) when1:
1. on or about May 2007, she indicated that she had not been paid for overtime she worked, and when her supervisor (S1) did a corrected time card it took a long time for her to get paid;
2. on or about July 6, 2007, she was given compensatory time for a meeting she had to attend outside her duty hours; however, a male co-worker was given overtime for attending the same meeting;
3. from November 4, 2007 to December 18, 2007, she was given less overtime than her male co-workers, and not according to fair practice;
4. on or about December 15, 2007, she was asked by S1 when she was going to start wearing the shorts given to her as part of her uniform;
5. she felt uncomfortable speaking alone to S1 because he had given her a memorandum with instructions dated May 1, 2007, about work expectations, that he did not give to anyone else;
6. on or about December 8, 2007, she was asked by S1 to step between two government vehicles so that he could talk to her.
On April 10, 2008, the agency issued a partial dismissal. The agency accepted for investigation claim 3. However, the agency dismissed claims 1 - 2 and 5 pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact. The agency also dismissed claims 4 and 5 pursuant to 29 C.F.R. � 1614.107(a)(4) for raising the same claims in a negotiated grievance procedure that allows for claims of discrimination to be raised. The agency dismissed claims 4 - 6 on the alternative grounds of failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1), finding that complainant was not aggrieved.
After the investigation concerning claim 3, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). On January 30, 2009, the AJ issued an order, dismissing the formal complaint from the hearing process. In his Order, the AJ concluded that because complainant failed to show cause for her failure to file timely pre-hearing submissions, to file timely response to the agency's motion for a summary judgment and follow the AJ's orders, he remanded the case to the agency for issuance of a final decision. Therefore, the agency issued the instant final decision on March 9, 2009.
In its March 9, 2009 final decision, the agency found no discrimination concerning claim 3. Specifically, the agency found whether or not complainant established a prima facie case of sex discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
The agency concluded that in its April 10, 2008, the Office of Resolution Management (ORM) properly dismissed claims 1 - 2 and 4 - 6 on the grounds of untimely EEO Counselor Contact and on the alternative grounds of failure to state a claim in its April 10, 2008 partial dismissal. The agency, however, concluded that it disagreed with the ORM's determination in dismissing claims 4 - 5 for raising the same claims in a negotiated grievance procedure that allows for claims of discrimination to be raised.
Regarding claim 3, complainant's supervisor (S1) stated that from November 4, 2007 to December 18, 2007, complainant "was offered overtime the same as all other employees." S1 stated that the current overtime schedule roster "is not set up for employees to volunteer for overtime unless they are next on the schedule." S1 stated that complainant did not share her concerns with him "at anytime during this period." S1 stated that during the relevant time, complainant did not volunteer for overtime. S1 stated that in accordance with the union, overtime is tracked by times available, and not by hours worked. S1 stated that during the period in question, complainant was offered overtime on four occasions; and that she accepted overtime twice and declined/refused overtime twice. S1 noted that complainant was on leave five days during the period in question. During the days that [complainant] was on leave, overtime was worked 10 times. S1 stated that " the average amount of overtime worked between the 10 drivers in [complainant's] overtime pool is 4.3 times."
Further, S1 stated that a review of evidence in the record by the Service Chief "has shown that [Complainant] received the second highest amount of overtime during the year in question. [Complainant] also worked overtime on 11/03/07 the day before the period in question started."
On appeal, complainant argues that she volunteered to stay late or come in to work to help cover shortages, and the Supervisor has called someone else in on their off day to work. Complainant asserted that "[Not] only does he call the same certain people in on off days but allow them to get overtime during the same week as well." Complainant further argues that S1 "is showing favoritism and being unfair in overtime distribution."
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 as discussed above. Complainant has not demonstrated that these reasons were a pretext for discrimination.
On appeal, complainant has provided no persuasive arguments indicating any improprieties in the agency's findings. 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 concerning claim 3 because the preponderance of the evidence of record does not establish that discrimination occurred.2
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
September 3, 2009
__________________
Date
1 For ease of reference, the Commission has re-numbered complainant's claims.
2 On appeal, complainant does not challenge an agency April 10, 2008 partial dismissal regarding claims 1 - 2 and 4 - 6. Therefore, we have not addressed these issues in our decision.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120092017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092017
6
0120092017