Jimmy C.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 1, 20160120140908 (E.E.O.C. Apr. 1, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jimmy C.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140908 Hearing No. 443-2010-00191X Agency No. 200J-0695-2009104938 DECISION On December 12, 2013, Complainant filed an appeal from the Agency’s November 14, 2013, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Frozen Food Ingredient Control Room/Cook in Nutrition and Food Service, at the Agency’s Veterans Affairs Medical Center in Milwaukee, Wisconsin. Complainant began working at the Agency in December 2008, and was terminated during his probationary period on September 29, 2009. During the relevant time, the Chief of Food Production was Complainant’s first level supervisor (S1). The Program Manager – Nutrition and Food Services Program, Clinical Support was Complainant’s second level supervisor (S2). Person A was the Clinical Dietician/Administrative Coordinator. 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. 0120140908 2 On January 13, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), age (50), and in reprisal for protected EEO activity (current EEO complaint)2 when: A. Effective September 29, 2009, Complainant was discharged from his employment during his probationary period. B. Complainant was subjected to a hostile work environment when: 1. From January 2009 and continuing, Complainant’s team members complained that food items were not received, however, Complainant alleges that items were received; 2. On February 10, and February 23, 2009, Complainant was given conflicting instructions regarding food preparation; 3. Beginning in February 2009 and continuing Complainant’s work environment was moved around without his permission and left in disarray; 4. On March 3, 2009, Complainant was told that he should be “cut” from his employment and was asked about his disability. 5. On March 25, 2009, S1 grabbed Complainant on the back of his shirt. 6. On April 15, 2009, S2 grabbed Complainant from behind; 7. In April 2009, S2 remarked in an open area that Complainant had a lot of nerve to bring the union to her. 8. On April 17, 2009, Complainant was told the cooks complained about him and that the food was improperly labeled. 9. In regard to additional duties, on May 1, 2009, Complainant was sent to work the domiciliary which made him behind in his other duties. 10. On May 7, 2009, S1 grabbed Complainant by the arm. 11. On May 28, 2009, Complainant was told he should be fired. 12. On May 29, 2009, Complainant was given a new set of job changes. 13. On June 25, 2009, Complainant was given a six-month review and told it was bad. 14. At the end of June 2009, S2 added more duties to Complainant's workload. 15. On July 17, 2009, Complainant was given a written counseling regarding his work performance. 16. Effective September 29, 2009, Complainant was discharged from his employment 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on December 16, 2011, and January 6, 2012. The AJ issued a decision on September 30, 2013. 2 Complainant originally included disability as a basis for his complaint. However, Complainant subsequently withdrew all of his disability discrimination claims prior to the hearing on his complaint. 0120140908 3 In his decision, the AJ found Complainant was unable to establish that he was subjected to a hostile work environment. The AJ noted Complainant alleged he was subjected to 16 incidents of alleged harassment. The AJ noted that at one time or the other (either in his affidavit or at the hearing) Complainant suggested that most of those incidents were not the result of his protected status. The AJ found that Complainant was unable to establish a hostile work environment claim because he admits most of the unwelcome conduct was not related to his protected status. Additionally, with regard to his termination claim, the AJ found Complainant did not establish that he was discriminated against because of his age or race. The AJ determined Complainant established a prima facie case of retaliation. The AJ noted that Complainant engaged in protected EEO activity. The AJ found Complainant established that he was subjected to a materially adverse action when he was terminated during his probationary period. The AJ determined Complainant put forth sufficient evidence to raise an inference of discrimination. The AJ noted Complainant was terminated, in large part, because he was not performing perpetual inventory in a satisfactory manner; however, Complainant put forth evidence that he was not properly trained in perpetual inventory.3 The AJ recognized Complainant also put forth evidence establishing that other probationary employees were not responsible for perpetual inventory. The AJ determined a nexus was shown since the materially adverse action happened within months of the alleged protected activity. The AJ stated the Agency articulated a legitimate, nondiscriminatory reason for its actions. The AJ noted the Agency asserted Complainant was properly trained on perpetual inventory and that his failure to satisfactorily perform perpetual inventory was only one factor in his termination. The Agency stated that overall Complainant was failing to meet its legitimate expectations of a probationary employee. The AJ determined Complainant established he was terminated because of his EEO activity. The AJ noted Complainant was not a perfect employee and that the Agency had noted his performance deficiencies as early as his 90-day evaluation. However, the AJ noted that while Complainant was not progressing as quickly as management had expected, management was committed to helping Complainant succeed. The AJ stated that on April 16, 2009, Complainant contacted an EEO representative to discuss his perception that management and his coworkers were treating him unfairly and subjecting him to a hostile work environment. The AJ noted that shortly thereafter, management became aware that Complainant had engaged in protected EEO activity. The AJ found that the record established that but for Complainant’s protected EEO activity, management would have continued to work with him and provide him guidance. The AJ found that instead management 3 The record shows physical inventory is a primary inventory done at the end of each month. Perpetual inventory is the daily entry of receipt of items, issue of items, so that at any point in time, the chief of food production or cook supervisor could check the inventory to see the availability of items. 0120140908 4 unprecedentedly quickened the pace of his training, and added new, more complex, and more time consuming duties. The AJ determined that Complainant was not given a fair chance to succeed. Thus, the AJ found Complainant was retaliated against because of his protected activity when he was terminated during his probationary period. As relief for the finding of retaliation, the AJ ordered the Agency to offer Complainant the position of Frozen Food Ingredient Control Room/Cook at the Agency’s Medical Center in Milwaukee, Wisconsin or some other mutually agreeable position. The AJ also ordered the Agency to determine and pay Complainant back pay (with interest, if applicable) and other benefits due Complainant. The AJ ordered the Agency to provide Complainant a six-month training period and assign Complainant a mentor mutually agreed to by the parties. The AJ noted Complainant shall meet weekly with his mentor to discuss his job performance and progress. The AJ noted the meeting and discussions shall be documented and signed by each party. Moreover, the AJ awarded Complainant $5,000 in nonpecuniary, compensatory damages and found Complainant was entitled to reasonable attorney’s fees and costs. The Agency subsequently issued a final order on November 14, 2013. The Agency’s final order fully implemented the AJ’s finding that Complainant proved that the Agency subjected him to discrimination as alleged and fully implemented the finding of no discrimination. 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. 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. (Aug. 5, 2015). At the outset, we note that on appeal Complainant does not challenge the definition of the issues addressed by the AJ. Complainant also does not challenge the AJ’s finding of reprisal discrimination regarding his termination or the remedy awarded by the AJ. Thus, we AFFIRM the finding of retaliation with regard to Complainant’s termination and the remedy awarded for the finding of retaliation. Complainant did not show he was entitled to any pecuniary damages. With regard to his harassment claim, we find that substantial evidence of record supports the AJ’s determination that Complainant failed to prove that the Agency subjected him to a hostile 0120140908 5 work environment because of his race, age, or in retaliation for his protected EEO activity. Specifically, we note that Complainant stated that most of the incidents alleged were not the result of his protected status either in his affidavit or at the hearing. Moreover, we find Complainant failed to show by a preponderance of evidence that he was subjected to a hostile work environment based on his race, age, or in retaliation for his protected EEO activity. Additionally, we find Complainant failed to show that he was subjected to discrimination based on his race or age with regard to his termination. CONCLUSION Accordingly, the Agency’s finding that Complainant was subjected to retaliation when he was terminated is AFFIRMED. The Agency’s finding of no discrimination on Complainant’s hostile work environment claim and his claim of discrimination based on race and age with regard to his termination is AFFIRMED. The matter is REMANDED for compliance with the Order herein. ORDER To the extent it has not already done so, the Agency shall take the following actions: 1. Within 30 days of the date this decision becomes final, the Agency shall offer Complainant the position of Frozen Food Ingredient Control Room/Cook at the Veterans Affairs Medical Center in Milwaukee, Wisconsin or another substantially equivalent position. The offer shall be made in writing. Complainant shall have 15 days from receipt of the offer to accept or decline the offer. Failure to accept the offer within 15 days will be considered a declination of the offer, unless Complainant can show that circumstances beyond his control prevented a response within the time limit. 2. If Complainant accepts the position of Frozen Food Ingredient Control Room/Cook or a substantially equivalent position, Complainant is entitled to a six-month training period. Complainant will be assigned a mentor mutually agreed to by the parties. Complainant shall meet weekly with his mentor to discuss his job performance and progress. The meeting and discussions shall be documented and signed by each party. 3. Within 60 days of the date this decision becomes final, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed 0120140908 6 with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision.” 4. Within 60 days of the date this decision becomes final, the Agency shall pay Complainant $5,000 in nonpecuniary, compensatory damages. 5. Within 60 days of the date this decision becomes final, the Agency shall conduct a supplemental investigation into Complainant’s entitlement to attorney’s fees and costs. Complainant shall cooperate in the Agency’s efforts to compute attorney’s fees, and costs, and shall provide all relevant information requested by the Agency. Within 60 calendar days of the Agency’s receipt of Complainant’s attorney’s fees statement, the Agency shall issue a final decision addressing the issues of attorney’s fees and costs. The Agency shall submit a copy of the final decision to the Commission’s Compliance Officer. 6. Within 180 days of the date this decision becomes final, the Agency shall provide training to S1, S2, and all other responsible Agency officials with regard to the prohibitions against retaliation under Title VII. 7. Within 60 days of the date this decision becomes final, the Agency shall consider taking disciplinary action against S1, S2, and all other responsible Agency officials for discriminating against Complainant. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. The Agency is further directed to submit a report of compliance, as provided in the statement herein entitled “Implementation of the Commission's Decision.” The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Veterans Affairs Medical Center in Milwaukee, Wisconsin facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. 0120140908 7 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File A Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 0120140908 8 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 0120140908 9 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 April 1, 2016 Date Copy with citationCopy as parenthetical citation