William Newton, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 24, 2009
0120081406 (E.E.O.C. Sep. 24, 2009)

0120081406

09-24-2009

William Newton, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


William Newton,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120081406

Hearing No. 460-2007-00118X

Agency No. 2003-0362-2006102800

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

January 31, 2008 appeal from the agency's decision 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.1

Complainant alleged that the agency discriminated against him in

reprisal for prior protected EEO activity when (a) he received an

unsatisfactory mid-year review and was given a performance assistance

plan on May 10, 2006; (b) he was placed on a performance improvement plan

(PIP) on September 14, 2006; (c) he was issued a five-day suspension

(reduced to a reprimand) on June 28, 2006; (d) he was issued a 14-day

suspension on December 18, 2006; and (e) he received a counseling memo

noting deficiencies in his performance on August 2, 2006. Following an

investigation, complainant requested a hearing but withdrew it, and,

the AJ directed the agency to issue a FAD within 40 days. The agency

issued a FAD on April 7, 2008.2

Complainant worked as a Valuation Officer/Supervisor Appraiser, GS-14,

in the agency's Regional Office in Houston, Texas. Complainant contended

that the actions alleged were taken against him because of his prior

EEO activity. In his appeal, he termed his dispute with his supervisors

as a "mere disagreement" in the appropriate contents of an administrative

file and contended that he did not alter the facts.3 His prior activity

occurred when he filed a formal complaint on March 21, 20064, in regard to

a reprimand he received on February 16, 2006. He withdrew this complaint

on July 18, 2006, after initiating the matter before us.

The standard of review in rendering this appellate decision is de novo,

i.e., the Commission will examine the record and review the documents,

statements, and testimony of record, including any timely and relevant

submissions of the parties, and issue its decision based on the

Commission's own assessment of the record and its interpretation of

the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,

Chapter 9, � VI.A. (November 9, 1999).

Following the three-part scheme of McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973), for analysis of claims alleging

disparate treatment based on reprisal, complainant can establish a

prima facie case of reprisal discrimination by presenting facts that,

if unexplained, reasonably give rise to an inference of discrimination.

Shapiro v. Social Security Admin., EEOC Request No. 05960403 (December

6, 1996). Specifically, in a reprisal claim, and in accordance with the

burdens set forth in McDonnell Douglas, supra, to establish a prima facie

case of reprisal, he must show that: (1) he engaged in a prior protected

activity; (2) the official acting on behalf of the agency was aware of

the protected activity; (3) he was subjected to adverse treatment by

the agency; and (4) a nexus, or causal connection, existed between the

protected activity and the adverse treatment. Whitmire v. Department of

the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). The record

reflected that his managers were not aware that he had prior activity,

believing that the instant matter was part of the first complaint,

nor did the record show that there was a causal connection between

the actions complained of and his prior activity, we will assume,

arguendo, and without finding, that he established a prima facie case

of discrimination based on reprisal for prior protected activity.

Agency managers explained that they had ongoing concerns about

complainant's performance since 2002, identifying his supervisory

abilities, the quality of his proposals and work, and the timeliness of

his reports and other submissions. They stated that the actions taken

were in an effort to work with complainant and help him improve his

performance. Complainant's job performance did not improve as desired,

and, because of some major errors, he received discipline, including the

14-day suspension. We find thus that the agency articulated legitimate,

nondiscriminatory reasons for its actions.

In the McDonnell Douglas scheme, once the agency articulated legitimate,

nondiscriminatory reasons for its actions, the ultimate burden of

persuasion returns to the complainant to demonstrate by preponderant

evidence that the reasons given by the agency for its actions are a

pretext or a sham or disguise for discrimination. The complainant

must show that the reasons for the agency's actions were not its true

reason; rather, that the agency was influenced by legally impermissible

criteria, i.e., his prior EEO activity. Absent a showing that the

agency's articulated reason was used as a tool to discriminate against

him, complainant cannot prevail. See St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993). Complainant in this case has not put forward any

evidence that the agency acted based on his prior EEO activity.

CONCLUSION

After a review of the record in its entirety and consideration of

all statements submitted on appeal, including those not specifically

addressed, it is the decision of the Equal Employment Opportunity

Commission to affirm the agency's final decision, because the

preponderance of the evidence of record does not establish that

discrimination occurred.

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 24, 2009

Date

1 On November 28, 2007, the EEOC Administrative Judge (AJ) accepted

complainant's request to withdraw his request for a hearing and remanded

the matter to the agency. The AJ ordered the agency to issue a final

agency decision (FAD) within 40 days and informed complainant that he

might appeal thereafter, pursuant to 29 C.F.R. � 1614.110(a). The agency

issued its FAD on April 7, 2008, and filed comments on May 2, 2008.

We accept the agency's FAD but find that its comments in opposition

are untimely. Complainant's appeal was perfect when the agency issued

its FAD. The agency's brief in opposition to the appeal should have

been filed within thirty days of the agency's receipt of complainant's

statement in support of his appeal. See 29 C.F.R. � 1614.403(f).

We note that the agency stated that it issued the FAD after "ODECA

received the file on March 26, 2008." The AJ ordered the agency to act

within 40 days from the order, before mid-January 2008; its April 7, 2008,

FAD was issued well beyond that time. The agency is reminded that delays

in the movement of documents among its internal offices do not extend the

time period within which it is required to act by regulation or by order.

2 Complainant initially raised additionally claims which were dismissed by

the agency for failure to state a claim, for failure to raise the claim

in EEO Counseling, or for raising the claim in a previous complaint.

The agency dismissed these claims pursuant to 29 C.F.R. �� 1614.107.

Because complainant has not raised these claims on appeal, we will not

address them.

3 Complainant did not address his claim that his managers acted in

reprisal.

4 We note that at least once in the record, this date is referred to as

the date on which complainant initiated EEO contact. It is not readily

apparent which circumstance is correct.

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0120081406

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120081406