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

Equal Employment Opportunity Commission

May 29, 2013

0120120692 (E.E.O.C. May. 29, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120120692

Hearing No. 420-2011-00142X

Agency No. 2001-0908-2010104730

DECISION

On November 28, 2011, Complainant filed an appeal from the Agency’s November 2, 2011,
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, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Cemetery
Caretaker and Work Leader at the Agency’s Ft. Mitchell National Cemetery. Person A, the
Director at the Ft. Mitchell National Cemetery was Complainant’s first-level supervisor from
June 24, 2007, though December 7, 2008. Person B took over as Director of the Ft. Mitchell
National Cemetery in April 2009, and at that time became Complainant’s first-level supervisor.

Complainant filed an EEO complaint dated November 8, 2010, alleging that the Agency
discriminated against him on the bases of race (Caucasian) and in reprisal for prior protected
EEO activity when:

1. On August 17, 2010, Complainant learned that while he had been suspended for
two days on October 24, 2007, two co-workers received less severe discipline for
the same infractions.

2. On July 28, 2010, Complainant received a five-day suspension with an effective
date of September 8, 2010.
0120120692

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At the conclusion of the investigation, the Agency provided Complainant 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. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for a decision without a
hearing and issued a decision without a hearing on October 6, 2011.

In his decision, the AJ determined that issue (1) was untimely. The AJ dismissed issue (1),
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Specifically,
the AJ noted that Complainant first contacted an EEO Counselor regarding issue (1) on
September 3, 2010, which was well over the 45 days from the date of the Agency’s alleged
discriminatory conduct.

With regard to issue (2), the AJ noted that on July 16, 2007, Complainant and Comparative 1
were assigned to a two-man team to bury a veteran’s spouse. The AJ noted that Complainant
and Comparative 1 placed the veteran’s spouse in the wrong grave-site with another veteran.
The AJ stated that as a result, the two families had to be notified and an additional internment
had to be scheduled to correct the error. The AJ noted that Person A suspended both
Complainant and Comparative 1 for two days for this incident finding that both individuals as a
team were responsible for opening and closing the grave-site.

The AJ noted that on July 28, 2010, Complainant was notified he would be suspended for five
day due to “failure to follow established guidelines” and “careless workmanship.” The AJ
recognized the deciding official for this suspension was Person C. The AJ noted that Person B
was the official who proposed the five-day suspension. The AJ noted that Person B explained
that the Work Leader (Complainant) filled out the “dig slips” to assign graves. The AJ found
that Grave-646 was the correct grave for the burial; however, on the paperwork Complainant
wrote Grave-446. The AJ noted that the person was buried in the correct grave, but the next
day it was discovered that the family had been given the incorrect paperwork. The AJ noted
that three people were involved in the situation in that the Agency determined they did not
catch the paperwork error. The AJ recognized that all three people received discipline.

The AJ found that because Complainant already had a prior two-day suspension, he receive the
five-day suspension at issue because of a progressive discipline process. The AJ noted that
Comparative 2 received an admonishment for the 2010 incident since he had no prior discipline
on his record. The AJ concluded that the Agency articulated a legitimate, non-discriminatory
reason for issuing Complainant a five-day suspension, i.e. his job performance was deficient,
and he had previously been awarded a two-day suspension. The AJ found there was no
evidence of pretext.

The Agency subsequently issued a final order on November 2, 2011. The Agency’s final
order fully implemented the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

0120120692

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ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “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”).

At the outset, we address the AJ’s dismissal of issue (1). EEOC Regulation 29 C.F.R.
§1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of
the Equal Employment Opportunity Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within 45 days of the effective date
of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a
“supportive facts” standard) to determine when the 45-day limitation period is triggered. See
Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the
time limitation is not triggered until a Complainant reasonably suspects discrimination, but
before all the facts that support a charge of discrimination have become apparent.

The record discloses that the alleged discriminatory event occurred on October 24, 2007, but
that Complainant did not initiate contact with an EEO Counselor until September 3, 2010,
which is beyond the 45-day limitation period. We note that Complainant claimed that at the
time of his 2007 suspension, he did not know that the discipline process was progressive in
nature. In his affidavit, Complainant stated that had he known the 2007 suspension would stay
in his personnel folder from that point forward, he would have filed “some kind of grievance”
on the matter. Upon review, we find Complainant has presented no persuasive arguments or
evidence warranting an extension of the time limit for initiating EEO Counselor contact. We
find that Complainant should have had a reasonable suspicion of discrimination at the time of
the 2007 suspension, which was more than 45 days prior to his initial EEO Counselor contact.

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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 consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
0120120692

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Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

Upon review, we find the AJ’s issuance of summary judgment was appropriate as there are no
genuine issues of material fact in dispute; nor are there any credibility determinations at issue.
Additionally, we find the record in the present case was fully developed. In the present case,
we find Complainant failed to prove by a preponderance of evidence that he was subjected to
discrimination based on his race or in reprisal for his prior protected EEO activity.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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
0120120692

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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

(Z0610)
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

May 29, 2013
Date