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
5
0120081406