0120080849
07-10-2009
Tommie L. Timmons, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Tommie L. Timmons,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080849
Hearing No. 510-2007-00221X
Agency No. 200I05732006103108
DECISION
On November 30, 2007, complainant filed an appeal from the agency's
October 15, 2007 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.
At the time of events giving rise to this complaint, complainant worked as
a certified respiratory therapist in Lake City, Florida. On August 25,
2006, complainant filed an EEO complaint (subsequently amended) alleging
that he was discriminated against on the basis of race (Black) when:
(1) on or about June 12, 2006 he received a written counseling;
(2) he was scheduled for mandatory overtime on September 21, 2005
and October 12, 2006; and
(3) on August 81, 2006, he was disapproved for 30 minutes of overtime
wages although he was unable to take his lunch break.
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 and the AJ held a hearing on September 12, 2007 and
issued a bench decision on September 19, 2007.
The AJ initially noted that the agency had already properly dismissed
issue (2) for untimely EEO counselor contact. The AJ then noted
that the Commission has held that a memorandum of counseling not
placed in official employment records does not render the individual
aggrieved. Notwithstanding, for purposes of his decision, the AJ assumed
complainant was aggrieved as to the letter of counseling. The AJ then
assumed that complainant could establish a prima facie case of race
discrimination as to the letter of counseling. The AJ next found as
follows: as a certified respiratory therapist, complainant is required to
maintain a basic life support (BLS) certification. By electronic mail
or e-mail dated June 6, 2006, complainant's supervisor (S1), notified
complainant that his certification was about to expire and asked him to
sign up for a class to obtain the certification and provide a copy of the
certification by June 30, 2006. On July 12, 2006, S1 issued a letter
of counseling because complainant had not complied with his request
by June 30, 2006. The AJ noted that another individual who required
the same certification also failed to obtain it in a timely manner, and
therefore S1 had also prepared a letter of counseling for him. However,
he never issued the letter to that individual since by the time he saw
him, that individual had obtained the certification. The AJ found no
evidence of pretext.
As to the overtime issue, the AJ found that complainant essentially argues
that his movement is restricted because he is not permitted to leave
hospital premises to have lunch (and therefore, he should be paid overtime
wages for 30 minutes of lunchtime). However, the AJ found complainant
not credible when he testified that there was no block of time during his
shift when he could take a lunch break. On the other hand, the AJ found
credible S1's testimony that he did not grant overtime for a lunch period
unless the request was supported by the workload statistics or by some
other special circumstance brought to his attention. The AJ noted that
absent any evidence of unlawful discrimination, Title VII was not meant to
give the Commission the power to substitute its judgment for the judgment
of the agency. The AJ found no discrimination. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged.
On appeal, complainant mainly expresses his dissatisfaction with the
AJ's conduct of the hearing. For instance, he asserts that the AJ did
not grant his motion to compel discovery responses and did not approve
all of the witnesses whom he proposed. He also points out that the AJ
initially found that a written counseling was an adverse action, and
later reversed by finding that it was not an adverse action. In reply,
the agency contends that complainant did not show or argue that the
AJ committed any harmful error based on his conduct of the hearing.
Additionally, the agency notes that the AJ assumed arguendo that the
written counseling constituted an adverse action. The agency asks the
Commission to affirm the final order.
Initially, we note that we discern no abuse of discretion on the part
of the AJ in this case. Administrative Judges have broad discretion in
the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110)
at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department of the
Navy, EEOC Request No. 05980746 (September 19, 2000).
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).
Here, assuming complainant could establish a prima facie case of
discrimination, the agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ's finding that complainant failed to
meet his burden to prove discrimination, is supported by substantial
evidence in the record. Based on a thorough review of the record and
the contentions on appeal, including those not specifically addressed
herein, we AFFIRM the final order.
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
_____07-10-09_____________
Date
1 At points in the record, this date was incorrectly cited as August
3, 2006.
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0120080849
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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