01a40754
07-28-2005
Willie Jones, Jr., Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Willie Jones, Jr. v. Department of Veterans Affairs
01A40754
July 28, 2005
.
Willie Jones, Jr.,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A40754
Agency Nos. 2003-0580-2001117867
2003-0580-2002101037
Hearing No. 330-A2-8072X
DECISION
BACKGROUND
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a Clerk at the agency's Houston VA
Medical Center facility, filed formal EEO complaints on April 2, 2001,
and January 24, 2002, alleging that the agency discriminated against
him when he was subjected to harassment and a hostile work environment
in retaliation of prior EEO activity<1> when:
(1) On February 23, 2001, he was charged AWOL from 9:45a.m. to
10:15a.m. after he went to sign some documents in the union office;
On February 28, 2001, he was charged AWOL from 8:00a.m. to 8:15a.m. after
he went to see his union representative;
On April 9 and 10, 2001, management denied his request to meet with an
EEO Counselor;<2>
On or about May 1, 2001, management wrote a report of contact
scrutinizing how he cleaned a cart;
On or about May 1, 2001, he was reassigned to from Dental Services to
Operative Care Line;
On or about July 30, 2001, management altered his assignment of duties
when his position description changed from �Clerk, GS-303-03,� to
�Office Automation Clerk, GS-0326-03;�
On or about August 3, 2001, his supervisor developed a report of contact
on how he cleaned a cart;
On or about August 6, 2001, he made a request to his supervisor to meet
an EEO Counselor at 10:00a.m., and was told by his supervisor that before
he could leave the work area he had to complete packaging batch #4688;
On or about August 6, 2001, his supervisor developed a report of contact
scrutinizing his work product for the day, asking whom he was going to
see at the union office, and how long he was on the telephone;
On or about August 7, 2001, his supervisor developed a report of contact
scrutinizing his work product for the day, how long he was away from
his duty station (outside, in a government van), and how long he was
on the telephone;
On or about August 8, 2001, his supervisor developed a report of contact
scrutinizing his work product for the day;
On September 10, 2001, his supervisor issued him a memorandum informing
him that, if he continued to refuse compliance with the former's request
to provide an updated telephone number where he could be reached,
he might be subjected to disciplinary action;
On September 12, 2001, his supervisor tampered/removed materials
from his work area which were essential for performance of duties,
and his supervisor further told him that he was not going to return
the materials;
On or about September 21, 2001, his supervisor issued him a letter of
counseling for failing to request leave, ignoring/failing to follow
supervisory orders, and for lack of productivity and/or long periods
of idleness;
On October 15, 2001, his supervisor provided him with a report of contact
for his lack of productivity on October 12, 2001, and for his failure to
follow written instructions (contained in a October 7, 2001, Memorandum)
regarding the procedures for bottling and labeling dental products;
On October 16, 2001, his supervisor issued him a memorandum requiring
his attendance at a fact-finding meeting schedule for October 18, 2001,
�regarding allegations of misconduct, specifically making disparaging
remarks and using racial epithets.�
Additionally, complainant alleged that he was subjected to discriminatory
disparate treatment on the basis of reprisal (prior EEO activity) when:
(17) On or about February 4, 2002, management issued a decision
mitigating complainant's proposed termination by substituting it with
three-day suspension without pay.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
Regarding claims (1) through (16), the AJ concluded that complainant
did not establish a prima facie case of retaliatory harassment because
the latter did not show that the actions at issue were based on the
statutorily protective class; i.e., that complainant failed to show that
the agency's actions were in some way connected to his EEO activity.
As to claim (17), the AJ found that, even though complainant did establish
a prima facie case of reprisal-based discrimination, the agency provided a
legitimate, nondiscriminatory reason for its action, and complainant fell
short of meeting his burden of demonstrating that the agency's explanation
was not credible. In short, the AJ found no reprisal-based discrimination
in the form of either a hostile work environment or disparate treatment.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
ANALYSIS AND FINDINGS
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.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws.
Harassment (Claims (1)-(16))
It is well-settled that harassment based on an individual's prior EEO
activity is actionable. See Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Ray v. Henderson,
217 F.3d 1234 (9th Cir. 2000); Drake v. Minnesota Mining & Mfg. Co.,
134 F.3d 878, 886 (7th Cir. 1998)). In order to establish a claim
of EEO reprisal-motivated harassment, the complainant must show that:
(1) he engaged in prior EEO activity; (2) he was subjected to unwelcome
conduct related to prior EEO activity; (3) the harassment complained
of was based on prior EEO activity; (4) the harassment had the purpose
or effect of unreasonably interfering with his work performance and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. See Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct
should be evaluated from the objective viewpoint of a reasonable person
in the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant's harassment claims (1) through (16) are not supported by the
factual record. Although the record indicates that there was conflict and
tension between complainant and his supervisor, we note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus. To the contrary, the record strongly hints that
the incidents were nothing more than everyday interactions between a
frustrated supervisor and an �opinionated� employee. Moreover, there
is nothing in the record which demands disturbing the AJ's conclusion
that the steps taken were not in furtherance of creating a hostile and
pervasive environment resulting from complainant's EEO activity. The AJ
found that the necessary nexus between the so-called harassment and the
EEO activity was lacking, and we agree.
Disparate Treatment (Claim 17)
Generally, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979).
A complainant must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited reason was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp v. Waters, 438 U.S. 567 (1978). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
After the agency has offered the reason for its action, the burden returns
to the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Burdine, 450 U.S. at 253; 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. Specifically, 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. United States
Postal Service Bd. Of Governors v. Aikens, 460 U.S. 711, 713-14 (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).
We find that the record supports the AJ's determination that the agency
met its burden by providing nondiscriminatory and logical reasons for
its actions. In claim (17), complainant alleges that he was the victim
of disparate treatment at the hands of management when he was issued a
Proposed Removal by his immediate supervisor and a Letter of Decision
by a higher-ranking official which lessened the proposed removal to a
three-day suspension without pay. The Proposed Removal was adequately
documented and supported by statements by witnesses and the complainant.
A fact-finding conference was conducted. Complainant had been accused
of making racial slurs and using profanity in the course of what should
have been productive workdays. The agency eventually decided that
disciplinary action was appropriate to deal with complainant's disruptive
conduct. Complainant confuses the issue by pointing to the fact that the
accusations launched against him were debatable. Complainant is mistaken.
The relevant issue is whether the actions taken by the agency's officials
were based on complainant's prior EEO activity. The AJ correctly went
on to find that complainant could not unmask the agency's contentions
as pretextual. Buttressed by substantial evidence, and by judgments
as to credibility and relevance that deserve great deference, the AJ's
finding that complainant was not the victim of reprisal discrimination
remains unaltered.
CONCLUSION
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
July 28, 2005
__________________
Date
1 Complainant previously filed a complaint alleging discrimination
against his immediate supervisor on the basis of race.
2 The record indicates that complainant was allowed to meet with his EEO
counselor on April 9, 2001. On April 10, 2001, however, complainant's
request to meet with his EEO counselor was denied because he did not
have an appointment.