0120130623
09-16-2015
Complainant v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120130623
Agency No. 200P-0741-2011104957
DECISION
Complainant timely filed an appeal from the Agency's final 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination based on his sex, religion, and in reprisal prior protected EEO activity, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative at the Agency's Health Administration Center (HAC) in Denver, Colorado. Report of Investigation (ROI), at 49. The primary functions of Complainant's position included counseling customers via telephone regarding the processes for all associated health benefit programs that are administered by the HAC. Id. at 318. The Customer Service Supervisor served as Complainant's first-level supervisor (S1). Id. at 110. The Supervisory Program Analyst served as Complainant's second-level supervisor (S2). Id. at 103.
In September 2011, management counseled Complainant with respect to three telephone calls. Id. at 112-13. S1 averred that, for each of the three calls, Complainant failed to offer additional assistance, did not document endnotes completely, made callers repeat themselves, and did not follow guidelines. S1 averred that Complainant's scoring on the calls was less than the call center standard of 95 percent. Id.
On October 14, 2011, Complainant received a memorandum from S1 titled, "Inappropriate Leave Pattern." Id. at 340. Therein, S1 noted that from July 17 through October 11, 2011, Complainant used 32 hours of sick leave either before or after a scheduled day off. Id. S1 wrote that this pattern reflected that Complainant was abusing the use of his sick leave. Id. S1 averred that Complainant called out on a Friday or Monday more than three times in a 90-day period. Id. at 113. Complainant felt that his leave pattern was not inappropriate because he took the time off after he had already come to work not feeling well. Id. at 120.
According to S1, on May 26, 2011, Complainant was verbally counseled for making outbound calls because the calls were impacting the entire call center. Id. at 114. S1 indicated that on September 19, 2011, Complainant made an outbound call for one hour and 30 minutes and made another such call on October 19, 2011, for 33 minutes. Id. As a result, Complainant was apparently given a written counseling for failure to follow instructions with respect to the outbound calls. Id. Complainant averred, however, that other employees were not counseled for making outbound calls as he was. Id. at 122. Complainant felt that such outbound calls were simply functions of his position. Id.
On November 5, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of sex (male), religion (Pentecostal), and reprisal for prior protected EEO activity1 when:
1. During the week of September 19, 2011, he received four failed coaching call counselings;
2. On September 21, 2011, S2 assigned two female coworkers to work on correspondence that Complainant requested to be assigned;
3. On September 23, 2011, S2 questioned Complainant when he reported for duty;
4. On October 14, 2011, he received a memorandum from S1 regarding inappropriate leave usage;
5. On October 19, 2011, he received a written counseling;
6. On October 28, 2011, S1 required Complainant to bring a doctor's note to be excused from telephone duty;
7. On November 2, 2011, he was required to provide a reason for requested leave; and
8. On November 17, 2011, he was charged with Absence without Leave (AWOL) from 11:50 a.m. to 12:20 p.m. for failure to return from his lunch after an employee meeting.2
On November 15, 2011, the Agency issued a letter of Partial Acceptance/Dismissal of Complainant's complaint. Therein, the Agency accepted claims 1, 4, and 5 for investigation, but dismissed the remaining claims. The Agency noted that although claims 1, 4, and 5 were timely independent claims of disparate treatment, the remaining claims failed to show actionable retaliatory harassment.3
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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, with regard to claims 1, 4, and 5, the Agency found that management articulated legitimate, nondiscriminatory reasons, which Complainant failed to establish were pretext for discrimination. The Agency found, with respect to claim 1, that Complainant had three failed calls in September that were below the center standard. The Agency noted that the elements Complainant missed on the calls were failing to offer additional assistance, not documenting endnotes completely, interrupting, making callers repeat themselves, not following guidelines, and not being ready to answer the call. With regard to claim 4, the Agency noted that Complainant called out on a Friday or Monday more than three times in a 90-day period from July 7 through October 11, 2011. The Agency further noted, with regard to claim 5, that on May 26, 2011, Complainant was verbally counseled for making outbound calls. The Agency indicated that on September 19, 2011, Complainant made an outbound call for one hour and 30 minutes and made another outbound call on October 19, 2011, for 33 minutes. The Agency lastly dismissed claim 8 for failure to timely contact an EEO Counselor, citing 29 C.F.R. � 1614.107(a)(2).
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that both S1 and S2 submitted false statements in the ROI. Complainant asserts that S1 and S2 were clearly aware of his prior protected EEO activity and any statements they submitted to the contrary were false. Complainant asserts that management refused to let him attend his annual Pentecostal Camp Meeting as agreed to in his prior EEO settlement. Complainant indicates that he requested to be transferred to another department within the Agency where his wife works, as she is the only other employee who is of the Pentecostal faith.4
STANDARD OF REVIEW
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. (Aug. 5, 2015) (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").
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex, religion, and reprisal, the Agency articulated legitimate, non-discriminatory reasons for its actions with regard to claims 1, 4, and 5, as noted above.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. With respect to Complainant's contention that management officials submitted false testimony, we note that as Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. We also note that, on appeal, other than accusing management of submitting false statements, Complainant does not specifically present any arguments challenging the Agency's legitimate, nondiscriminatory reasons.5 Further, Complainant named S1 and S2 as responsible management officials (RMOs) here, but named different RMOs in his prior EEO complaints. ROI, at 127. We can find no evidence in the record specifically indicating that Complainant was subjected to discrimination based on his protected classes as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 16, 2015
Date
1 Complainant filed a prior EEO complaint (Agency No. 200P-0741-2011103835) on June 23, 2011, regarding time and attendance, pay and allowance, and reasonable accommodation for his religion. It settled in August 2011. ROI, Aff. B-1; 127.
2 In its final decision, the Agency noted that Complainant raised claim 8 in his February 24, 2012, investigatory affidavit.
3 In its Partial Acceptance/Dismissal, the Agency noted that Complainant only alleged that he was subjected to harassment with regard to claims 2, 3, 6, and 7.
4 On appeal, Complainant does not specifically contest the Agency's dismissal of claims 2, 3, 6, 7, and 8; therefore, we exercise our discretion not to address the Agency's dismissal of these claims herein. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, Sec. IV.A. (Aug. 5, 2015).
5 To the extent that Complainant believes that the settlement agreement as noted above has been breached, he is directed to the Commission's regulations regarding procedures for filing a claim of breach. 29 C.F.R. � 1614.504(a). If Complainant believes that the Agency has failed to comply with the terms of the settlement agreement, the regulations require that he first notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when he knew or should have known of the alleged noncompliance. Id. The record does not reflect that Complainant has notified the EEO Director of any allegation of breach. As such, we decline to address Complainant's breach allegation.
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