0120142414
01-30-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120142414
Hearing No. 551-2013-00045X
Agency No. ARLEWIS11 NOV04750
DECISION
Complainant filed an appeal from the Agency's May 6, 2014, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Services Assistant at the Agency's Madigan Medical Center in Tacoma, Washington.
On February 14, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and religion (Islam/Muslim) when, on November 9, 2011, he was terminated from his position during his probationary period.
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, and the AJ held a hearing on April 16, 2014, and issued a decision on April 23, 2014.
The AJ determined that Complainant was hired by the Agency in November 2010 by the same Agency officials who were responsible for his termination prior to the end of his probationary period. These officials testified that they hired him because they believed he was qualified and were impressed with his friendly and out-going attitude, which they believed would be an asset because MSAs are the employees who first greet patients at the front desk. However, during the almost entire year that Complainant worked in his position, the management officials testified that his work performance and attitude deteriorated.
The AJ found that the testimony from responsible management established that Complainant was removed from his position after several incidents. First, in June 2011, another employee had asked Complainant to stop singing a rap song that contained inappropriate lyrics that could be heard by patients and he became angry and threatening. In October 2011, the same employee asked him to print a form and he again became very angry. This time, the employee, who was upset and frightened by Complainant's sudden outbursts of anger, reported both incidents to management. Complainant's supervisor stated that Complainant became angry when he was asked about the outbursts and refused to write a statement during their investigation of the alleged incidents. A few days later, a second management person reminded Complainant that he needed to write a statement and he again became very angry. Complainant was then ordered to stay away from the other employee. Instead, according to the supervisor, "not more than five minutes later" he went to the employee's work area and gave her a "thumbs up." Management stated that, as a result, Complainant was removed because of his conduct and failure to follow instructions.
Based on the evidence, the AJ concluded that Complainant had not proven that he was discriminated against as alleged. The AJ found that the Agency articulated legitimate nondiscriminatory reasons for his removal, which Complainant did not prove were a pretext masking discrimination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The instant appeal followed.
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.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
The AJ found that the responsible management officials articulated legitimate reasons for the decision to terminate Complainant's employment prior to the end of his probationary period. The AJ specifically found the management witnesses to be credible, while questioning the credibility of some of Complainant's testimony. 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, at � VI.B. (November 9, 1999). We are presented with no reason to question the AJ's credibility findings in this case.
Complainant did not prove, by a preponderance of the evidence, that the reasons proffered by management for his termination were a pretext designed to mask race or religious discrimination. First, the record supports the AJ's determination that there was no evidence that the responsible management officials were even aware that Complainant was a Muslim. Second, the fact that the same Agency officials had hired Complainant less than a year before his termination provides evidence of a lack of race-based animus on their part towards Complainant. Finally, the weight of the evidence supports the finding that the events cited for the termination occurred as represented, and there was no evidence that other similarly situated employees had been treated more favorably.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the finding that Complainant was not discriminated against as alleged.
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 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
January 30, 2015
__________________
Date
2
0120142414
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120142414