0120170548
09-13-2018
Vance C.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vance C.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120170548
Hearing Nos. 510-2013-00323X, and 510-2014-00159X
Agency Nos. 200I06752012104300, and 200106752013103131
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 20, 2016, 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. For the following reasons, we AFFIRM the Agency's Order which fully implemented the Equal Employment Opportunity Commission Administrative Judge's finding that Complainant did not demonstrate that he was subjected to harassment and/or discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Worker at the Agency's Orlando VA Medical Center, Lake Balwin Site, Mental Health Services facility in Orlando, Florida. On November 15, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Since 2008, management failed to take action on his requests to have current duties and responsibilities removed that were equal to the duties of a psychologist and beyond his scope of practice;
2. Since 2008, management subjected him to intimidation on a daily basis by requiring him to have his mental health assessments approved by his direct supervisor(s);
3. Since 2008, he was the only social worker that was subjected to excessive supervision of his clinical assessments and documentation for such a length of time;
4. On October 3, 2012, his request for reimbursement for work related training was denied;
5. On October 5, 2012, during a meeting with his Supervisor (S1) and the Human Resources (HR) Specialist he was denied union representation and was threatened with discipline and an absent without leave (AWOL) charge;
6. On October 26, 2012, S1 and the HR Specialist initiated an administrative investigation against him prior to advising him of rumors and documentation that consisted of unsubstantiated evidence against him;
7. On November 1, 2012, his mid-term performance rating of fully successful was changed to minimally satisfactory on his performance appraisal for FY 2012;
8. On October 16, 2012, S1 denied his request for administrative absence to attend an EEOC pre-hearing conference;
9. On October 29, 2012, he was forced to use his personal leave when S1 granted him only two hours of administrative absence to attend a meeting and pre-hearing conference with his attorney;
10. On January 18, 2013, he was issued a proposed admonishment that was sustained on February 22, 2013;
11. On March 6, 2013, S1 accused him of not completing a full Suicide Risk Assessment and that a potentially suicidal patient sat in the lobby from the time of his appointment with Complainant until approximately 11:00 a.m.;
12. On March 7, 2013, the Dr. (D1) told him that he could not assist him with a possible solution to ending the ongoing harassment and unethical behavior by S1;
13. On April 2, 2013, he was removed from his current social work duties and temporarily detailed out of direct patient care to another location;
14. Effective April 3, 2013, he started performing his new duties which were very simple in nature, consisting of entering advance directive information into CPRS;
15. On May 17, 2013, he was told that he was not meeting S1's expectations, that his performance was unacceptable and that he would not be rated fully successful, and he was also issued a mid-term performance appraisal for FY 2013 that indicated his performance "needed improvement to be fully successful or better;"
16. On July 1, 2013, he was issued a proposed reprimand; and
17. On October 28, 2013, he received a minimally satisfactory rating on his performance appraisal for FY 2013.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing and subsequently issued a decision in favor of the Agency.
The Agency issued its final order adopting the AJ's conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed.
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, at � VI.B. (Aug. 5, 2015).
On appeal to the Commission, the burden is squarely on the party challenging the AJ's decision to demonstrate that the AJ's factual determinations are not supported by substantial evidence. See id. at Ch. 9, � VI.C. In this case, this means that Complainant has the burden of pointing out where and why the AJ's findings are not supported by substantial evidence. Cf. id. (pointing out that "[t]he appeals statements of the parties, both supporting and opposing the [AJ's] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ's] factual determinations are supported by substantial evidence").
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports the AJ's determination that Complainant has not proven discrimination by the Agency as alleged.
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___9/13/18_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120170548
3 0120170548