0120111105
09-20-2012
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. 0120111105
Agency No. 2003-0916-201010140
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 the Agency's final decision.
ISSUE PRESENTED
The issue presented on appeal is whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the bases of race and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Cemetery Representative, GS-06, at the Agency's Dallas-Fort Worth National Cemetery in Dallas, Texas. On January 29, 2010, Complainant filed an EEO complaint, amended on February 23, 2010, alleging that the Agency discriminated against him on the basis of race (African-American) and reprisal for prior protected EEO activity when:
1. on December 24, 2009, the Assistant Cemetery Director (ACD) denied his request to work overtime;
2. on January 28, 2010, Complainant's first-level supervisor (S1) sent him an e-mail, asking for an update on four marker orders by close of business; and
3. on February 22, 2010, S1 sent him an e-mail, asking for the status of a monument order, reiterating deadlines, and requesting that they talk before close of business that day.
On March 12, 2010, the Agency issued a partial acceptance/dismissal of Complainant's complaint. Therein, the Agency accepted claim 1 for investigation, but dismissed claims and 2 and 3 for failure to timely contact an EEO counselor and failure to state a claim pursuant to 29 C.F.R. �� 1614.107(a)(1) and (2).1 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 Agency found that it articulated legitimate, nondiscriminatory reasons for its actions. The Agency noted that on December 16, 2009, the ACD sent an e-mail to staff members asking if any employees were interested in working overtime for burials scheduled on December 24 and 26, 2009. The Agency noted that Complainant, a coworker (C1) (female African-American) and another coworker (C2) (male Caucasian) responded to the ACD's e-mail, indicating their availably to work both days. The Agency noted that the ACD selected C1 and C2 instead of Complainant because only two employees were needed to work overtime at that time. The Agency noted that C1 was chosen because her primary job function involved setting up burials services for the following day, and C2 was chosen because he had worked at the Agency's facility the longest. The Agency noted that the ACD had also denied overtime requests to three other, Caucasian employees. The Agency further noted the ACD was unaware of Complainant's prior protected EEO activity. The Agency found no evidence that either race or prior EEO activity in played a role in management's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant, in pertinent part, contends that the Agency's legitimate, nondiscriminatory reasons are false and unworthy of belief. Complainant contends that the ACD's testimony is materially false. Complainant contends that he had the same job functions as C1 and had performed the same duties just as long as she had. Complainant contends that C1 was not scheduled to work the next business day as the ACD indicated. Complainant contends that C2 was a Budget Analyst and not a Cemetery Representative, as he was. Complainant contends that the ACD falsely testified that he selected Complainant the following week to work overtime. Complainant contends that the ACD submitted false testimony throughout the Agency's Report of Investigation.
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 Chap. 9, � VI.A. (Nov. 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").
Disparate Treatment
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, because 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. 23, 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks. 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on race and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely, the ACD explained that that C1 was chosen because her primary job function involved setting up burials services for the following day, and C2 was chosen because he had worked at the Agency's facility since its opening. Report of Investigation (ROI), at 119.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant contends that he had the same job functions as C1 and had performed the same duties just as long as she had. Complainant contends that C1 was not scheduled to work the next business day as the ACD indicated. Complainant contends that C2 was a Budget Analyst and not a Cemetery Representative, as he was. Complainant contends that the ACD falsely testified that he selected Complainant the following week to work overtime. Complainant contends that the ACD submitted false testimony throughout the Agency's Report of Investigation.
Notwithstanding Complainant's contentions, we can find no evidence contained in the record that the ACD was motivated by discriminatory animus based on Complainant's protected classes. There is no dispute that the ACD only needed two employees to work overtime on the dates above. We note that the record reflects that other employees were not chosen as well. ROI, at 34-38. The record also reflects that the ACD e-mailed Complainant, stating that Complainant would be chosen for the next overtime opportunity. Id. at 33. We also note that C1 was the same race as Complainant. We further can find no evidence that the ACD had knowledge of Complainant's prior EEO activity. Therefore, we find that Complainant has failed to establish that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination.
With respect to Complainant's contention that the ACD 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. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination 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
September 20, 2012
Date
1 Complainant does not, on appeal, contest the dismissal of claims 2 and 3. Accordingly, we exercise our discretion to address only those issues which are raised on appeal, and will not address the dismissal of claims 2 and 3. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), at Ch. 9, �IV.A. (Nov. 9, 1999).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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