0120092139
03-31-2011
Donald K. Brown, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, (National Cemetery Administration), Agency.
Donald K. Brown,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
(National Cemetery Administration),
Agency.
Appeal No. 0120092139
Agency No. 2003-0916-2008102128
DECISION
On April 19, 2009, Complainant filed an appeal from the Agency's March
11, 2009, 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 the Agency's final decision finding no discrimination.
ISSUE PRESENTED
The issue presented in this appeal is whether Complainant was
discriminated against on the bases of his race and in reprisal for prior
EEO activity and due to his opposition of unlawful discrimination when he
was placed on administrative leave, suspended, assigned to work indoors,
and verbally counseled for almost missing an assignment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Cemetery Representative, GS-6 at the Agency's VA National Cemetery
facility in Dallas, Texas. Complainant contends that the African American
workers were treated less favorably in the office than White employees.
Specifically, Complainant noted that from February to November 2008,
management assigned Complainant and another black worker to indoor duties
while two white workers (GS-5 and GS-4) were assigned to work outdoors
where Complainant argued there was less supervision. When Complainant
questioned this he was told that the two black workers were assigned
to indoor activities and the white workers were assigned to outdoor
activities because the white workers were making too many errors
formatting and ordering memorial monuments so management did not want
them to perform those duties. It was also pointed out to Complainant
that he continued to perform burial services on a weekly basis.
On March 10, 2008, a staff meeting was held. At that time, Complainant
accused management of discrimination because they allowed white workers
to work outside while the black workers stayed inside under supervision.
Complainant was upset and reportedly yelled racial comments despite
repeated instruction to stop. It was also reported that he lunged and
pointed his finger at his supervisor. As a result of this outburst,
Complainant was placed on administrative leave from March 10 through March
21, 2008, for inappropriate behavior. The supervisor maintained that
Complainant created a hostile work environment as he made his coworkers
feel physically threatened. On April 4, 2008, Complainant was involved
in a loud confrontation with a black coworker immediately preceding a
burial service and because of this action Complainant was suspended for
ten days on June 16, 2008. Complainant maintained that a white former
Work Leader routinely yelled at workers but was never disciplined.
Complainant's second line supervisor who upheld Complainant's suspension
indicated that he was unaware of the white worker's behavior but
maintained that Complainant's outbreaks were repeated behavior.
Complainant also alleged that on August 5, 2008, he was assigned to
purchase boots and uniforms for the unit. As a result, Complainant was
almost late for one of his assigned burial services. Complainant argued
that a replacement should have been assigned. He maintained that in
the past, black workers had been assigned to fill in for their white
counterparts when emergencies arose. Complainant indicated that his
supervisor talked to him days later about this incident and reminded
him that workers were to arrange replacement coverage for themselves.
She noted however that there was no issue to address because Complainant
arrived at the facility in time for the scheduled burial service.
As a result of these issues, on April 14, 2008, Complainant filed an
EEO complaint alleging that the Agency discriminated against him on the
bases of race (African-American) and reprisal for prior protected EEO
activity when:
1. From February 2008 through November 2008, management assigned
African- American cemetery employees to work indoors with supervisor
while Caucasian cemetery employees were assigned to work outdoors
without supervision.
2. (a) Management placed Complainant on administrative leave effective
March 10 through March 21, 2008, which precluded him from entering the
cemetery grounds.
(b) On or about June 2, 2008, Complainant learned that a 10-day
suspension proposed on April 10, 2008 had been sustained and thereafter
imposed on June 16, 2008.
3. On August 5, 2008, Complainant was informed that he was assigned
the duty of purchasing new boots and uniforms; however, when Complainant
returned from completing the assignment, management counseled him for
not being on duty and/or at the cemetery to begin a burial ceremony.
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). 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, the FAD found that assuming arguendo that
Complainant established a prima facie case of discrimination, the Agency
articulated legitimate, nondiscriminatory reasons for its actions and
Complainant failed to show that the articulated reasons were pretext
for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the proffered legitimate reason
for its actions seem implausible, inconsistent, incoherently weak and
contradictory to the investigative summary. Complainant contends that
there are many inconsistencies within management's testimony especially
with regard to dates and actions. He maintains that contrary to the
Agency's argument, the two white workers still routinely use the computer.
Complainant also maintains that he has been subjected to discrimination
by his supervisor on many occasions. For example, he notes that he
was asked whether he would be returning to the office after ADR or
whether he would be taking leave. He maintains that this was after he
had received administrative leave. Complainant also contends that his
supervisor perjured herself during the investigation because she said
that she was not aware of Complainant's prior EEO activity when he was
sure that she was aware of this information. Complainant contends that
his work location is permeated with discriminatory activity. He requests
$297,000 in damages.
In response, the Agency contends that Complainant has failed to show
that it's articulated legitimate, nondiscriminatory reasons were pretext
for discrimination.
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").
Generally, claims of disparate treatment are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). Hochstadt v. Worcester Foundation 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; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Once Complainant has established a prima facie
case, the burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is
successful, the burden reverts back to the 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 her 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
(1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-16 (1983).
Following the three-part scheme of McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973), for analysis of claims of disparate treatment based
on reprisal, Complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (December 6, 1996). Specifically,
he must show: (1) he engaged in a prior protected activity; (2) the
official acting on behalf of the Agency was aware of the protected
activity; (3) he was subjected to adverse treatment by the Agency; and
(4) a nexus, or causal connection, exists between the protected activity
and the adverse treatment. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000).
In the instant case, the Commission finds that Complainant has failed to
show that he was discriminated against as alleged. We find that even
if we assume arguendo that Complainant established a prima facie case
of discrimination based on race and reprisal, the Agency has articulated
legitimate, nondiscriminatory reasons for its actions while Complainant
failed to show that the reasons were pretext for discrimination.
Specifically, with respect to Complainant's contention that management
assigned African American cemetery workers to work indoors while white
workers were allowed to work outdoors without supervision. The Agency
explained that Complainant and another black GS-6 worker were assigned
to work indoors because they were proficient at formatting and ordering
memorial monuments while the two white workers made too many errors. The
Agency also indicated that these duties were included in the position
descriptions of Complainant and the other GS-6 worker. Moreover, the
Agency indicated that Complainant continued to perform burial services on
a weekly basis so he was not prohibited from working outdoors. It was
also noted that the level of supervision did not differ between indoor
and outdoor work.
Further, management maintained that Complainant was disciplined on
two occasions because of his disruptive and insubordinate behavior.
Management indicated that it considered all of the circumstance
when it decided to suspend Complainant twice for a period of 10 days.
Management noted that Complainant was insubordinate, and created a hostile
work environment based on his behavior. Further, the Agency alleged
that Complainant had a history of outbursts of anger which ultimately
prompted the Director to recommend Complainant's participation in anger
management therapy.
Finally with regard to Complainant almost missing a burial, management
explained that it has always been the responsibility of the workers
to arrange for coverage in the event that the worker would be absent.
Management also indicated that no adverse employment action ever took
place because Complainant did not miss the scheduled burial.
To show pretext, Complainant maintains that the white workers still
have access to the computer despite the Agency's argument that they
did not do the job well. He also maintains that there were many
inconsistencies in the record regarding when things happened and the
level of knowledge held by the parties involved. The Commission finds
that other than Complainant's conclusory statements he has provided no
evidence which suggests that his race and/or prior EEO activity were
considered with regard to the incidents in this case. We note that
with respect to issue (1), the evidence shows that the assignment was
made based on GS level, as the lower GS level employees made too many
mistakes with regard to formatting and ordering memorial monuments.
In fact, the record shows that a GS-5 African American worker was also
not allowed to use the computer to format and order memorial monuments.
On appeal Complainant contends that the white workers continue to us
the computer but he does not indicate however that they are formatting
and ordering memorial monuments. With respect to issue (2), Complainant
does not deny that the events happened as indicated but focuses on the
fact that he was disciplined. Moreover, while he compares himself to a
non-black worker who was not disciplined, he does not show that they did
the same thing or that the comparator had been counseled in the past as
the record indicates Complainant has been. Finally, with respect to issue
(3), we note that while Complainant's supervisor may have mentioned the
incident no adverse employment action was taken by management because
Complainant did not miss the scheduled burial.
Finally, to the extent that Complainant is asserting that Agency's
polices are having a disparate impact on African American workers, we
note to establish a prima facie case of disparate impact, Complainant
must show that an Agency practice or policy, while neutral on its face,
disproportionately impacted members of the protected class. This is
demonstrated through the presentation of statistical evidence that
establishes a statistical disparity that is linked to the challenged
practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977,
994 (1988) (Complainant must present "statistical evidence of a kind and
degree sufficient to show that the practice in question has caused the
exclusion"). Specifically, Complainant must: (1) identify the specific
practice or practices challenged; (2) show statistical disparities:
and (3) show that the disparity is linked to the challenged practice
or policy. Id.; Obas v. Dep't of Justice, EEOC Appeal No. 01A04389
(May 16, 2002). The burden is on the Complainant to show that "the
facially neutral standard in question affects those individuals [within
the protected group] in a significantly discriminatory pattern." Dothard
v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines v. Dep't of the
Navy, EEOC Petition No. 03990119 (August 21, 2000).
We find that Complainant failed to identify specific Agency policies that
he believes resulted in a disparate impact on Black employees. We also
find that Complainant has failed to provide any evidence to show that a
statistical disparity exists that is linked to these Agency policies.
Accordingly, we find that Complainant failed to establish that Agency
policies resulted in a disparate impact on African American workers
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 (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
___3/31/11_______________
Date
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0120092139
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092139