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

Equal Employment Opportunity Commission

Jun 13, 2014

0120131439 (E.E.O.C. Jun. 13, 2014)

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. 0120131439

Hearing No. 560-2010-00313X

Agency No. 200P-0777-2010100820

DECISION
Complainant filed an appeal from an Agency’s final order dated January 30, 2013, finding no
discrimination with regard to his complaint. For the following reasons, we AFFIRM the
Agency’s final order finding no discrimination.

BACKGROUND
In his complaint, dated January 21, 2010, Complainant alleged discrimination based on race
(African American), age (over 40), and in reprisal for prior EEO activity when on November
7, 2009, he was terminated from his position as Education Program Specialist, GS-1720-11, at
the Agency’s Employee Education Service in Saint Louis, Missouri, during his probationary
period. The record indicates that at the conclusion of the investigation, Complainant requested
a hearing before an EEOC Administrative Judge (AJ). On December 31, 2012, the AJ, after a
hearing, issued a decision finding no discrimination, which was implemented by the Agency in
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
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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, § VI.B. (November 9, 1999).
In this case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the termination. Complainant’s supervisor (S1) stated that on May 9, 2009, she
was notified by an identified Project Manager (PM) that she and two other PMs had concerns
about Complainant’s rudeness and unprofessional behavior and attitude toward them and other
staff. S1 stated that she brought this matter to Complainant’s attention at that time. S1 also
indicated that in June, during his 90-day evaluation, Complainant told S1 that he was not happy
with an identified support staff individual not following his directions. S1 indicated that later
two other employees approached her with concerns about Complainant’s behavior. S1 also
stated that in July 2009, Complainant was very angry and combative when she told
Complainant that he failed to complete the required training courses. S1 stated that the above
encounter with Complainant indicated that he had no respect for her as his supervisor.

S1 further indicated that in September 2009, she met with the Director of Field Operations, a
Senior Executive Service member, in Washington, D.C., who told her that he had a negative
experience with Complainant when he recently visited S1’s office. Specifically, the Director
indicated to S1 that when he asked Complainant and other staff members during a meeting
what they were doing and what they were working on, Complainant responded to him, “I’m
just hanging around here drinking beer.” S1 stated that she apologized to the Director about
Complainant’s misbehavior. S1 indicated that she discussed the foregoing incident with her
supervisor, i.e., Complainant’s second level supervisor (S2), about Complainant’s lack of
suitability for employment at the Agency. S2 indicated that he decided to terminate
Complainant during his probationary period due to his difficulties in working with his
coworkers in the office, his rudeness to the Director, and his inability to respect S1.

The AJ stated and we agree that Complainant failed to show by a preponderance of the
evidence that the Agency’s proffered reasons were pretextual. Furthermore, we find that
Complainant failed to show that he was treated less favorably than a similarly situated
employee under similar circumstances. Upon review, we find that the AJ’s factual findings of
no discriminatory intent are supported by substantial evidence in the record.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order finding of no discrimination is AFFIRMED because the
AJ’s decision is supported by substantial evidence.
0120131439

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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
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
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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

Date
June 13, 2014