0120152296
07-11-2017
Foster G.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Foster G.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152296
Hearing No. 550-2013-00032X
Agency No. 200P-0662-2012101896
DECISION
On June 19, 2015, Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403, from the Agency's May 29, 2015 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a temporary Staff Nurse at the VA Medical Center, Psychiatric Intensive Care Unit in San Francisco, California.
On April 13, 2012, Complainant filed a formal complaint alleging, in relevant part, that the Agency harassed and discriminated against him based on his race (Asian) and age (59) when:
1. on February 7, 2012, his first line supervisor (S1) falsely accused him of sleeping on duty and would not disclose who made the allegation;
2. on February 29, 2012, S1 told him he is too old, too slow and/or too dangerous to safely work the night shift and instructed him to report to the day shift effective March 4, 2012, or to take annual leave, resulting in loss of differential pay; and
3. on March 19, 2012, S1 instructed him to turn in his work keys, clear out his locker, and subsequently notified him that his appointment would expire on April 13, 2012, and would not be renewed.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for summary judgment. The AJ granted the motion on Complainant's race claim, and conducted a hearing on his age claim. The AJ then issued a decision in favor of the Agency.
The Agency issued its final order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
The AJ found the following. S1 did not make the comments alleged in issue 2. This finding was explicitly based on the AJ's credibility determinations on the testimony of S1, Complainant, and a witness, as well as documentary evidence. On February 7, 2012, S1 accused Complainant of sleeping on duty because multiple people, including staff and a patient, averred this occurred repeatedly. This finding was based on testimony at the hearing and documentary evidence. S1 transferred Complainant to the day shift because he was deeply concerned that multiple peers witnessed him sleeping on duty, he refused to accept accountability, sleeping on duty is very dangerous, especially in mental health where there are multiple ways for people to get hurt, and under the day shift Complainant would be under closer supervision without a full patient load and could be further assessed. This finding was based on identified testimony by S1, which the AJ wrote was credible based on his demeanor and consistency with his affidavit. S1 did not renew Complainant's appointment for reasons like those for his transfer to the day shift and because his behavior did not improve, i.e., he fell asleep in front of S1 during the day shift on March 7, 2012, and a nurse reported that he observed Complainant sleeping on duty on March 11, 2012. This finding was based on further testimony of S1, and documentation. The above AJ's findings are supported by overwhelming evidence in the record.
The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, and Complainant did not prove these reasons were pretext to mask discrimination.
On appeal, Complainant argues through counsel retained to represent him on appeal that he was not advised of the right to legal counsel before the hearing, and the AJ denied his ability to effectively cross-examine witnesses by making erroneous evidentiary rulings. Complainant asks that the AJ's decision be set aside and we order a new de novo hearing. In opposition to the appeal the Agency argues that its final order should be affirmed.
Complainant was advised of his right to representation at multiple points throughout the EEO process. For example, he was advised of this in the Agency's April 2012 notice to him of the right to file an EEO complaint, the hearing request form he used solicited the name of his representative, this advice was in the AJ's initial Acknowledgment and Order to the parties more than two years before the hearing, and about a month thereafter Complainant completed a form explicitly advising of the options to proceed with or without a representative, and he chose the latter. We find that the AJ did not abuse her discretion in making the referenced evidentiary rulings. Further, based on a review of the record, we find that the AJ properly granted the Agency's motion for summary judgment on Complainant's race claim because there were no genuine issues of material fact. Following the hearing the AJ properly found no discrimination based on strongly persuasive evidence.
Accordingly, we AFFIRM the Agency's final order.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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's signature
Carlton M. Hadden, Director
Office of Federal Operations
July 11, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant also claimed reprisal discrimination. The AJ found that the EEOC had no jurisdiction over this claim because it was based on whistleblowing, and even if we did, he did not prove the Agency's explanations for its actions were pretext for retaliation. Since Complainant does not raise reprisal discrimination on appeal, we will not further address this matter.
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