0120103478
03-15-2012
Jordan P. Wilson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jordan P. Wilson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103478
Agency No. 200I05212009103187
DECISION
On August 24, 2010, Complainant filed an appeal from the Agency's July 26, 2010, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Dispatcher at the Agency's Birmingham, Alabama facility. On July 17, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (Post Traumatic Stress Disorder [PTSD]) when, on May 15, 2009, he was terminated 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 EEOC Administrative Judge (AJ). The agency then conducted a supplemental investigation, but Complainant declined to participate. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency found Complainant suffered from PTSD, but that he failed to prove that his supervisor was aware of his PTSD. The agency found Complainant was terminated for legitimate reasons; namely, that he suffered from performance deficiencies, which were documented in a counseling statement. Then, he threatened to kill his supervisor and other co-workers. The agency found that although Complainant presented evidence that others approved of his performance, he failed to prove the agency's reasons for terminating him were a pretext for discrimination. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that his supervisor was aware that he suffered from PTSD, and made negative comments about others who have PTSD. He asserts that his supervisor set him up to fail, and supplies statements from others supporting his performance. The agency asks that we affirm its final decision.
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").
After a review of the entire record, we find the preponderance of the evidence does not prove that Complainant was subjected to discrimination on the basis of his disability. Assuming, arguendo, that Complainant is an individual with a disability, and that his supervisor was aware of his disability, we find Complainant failed to prove the agency's reasons for its actions were a pretext for discrimination. The record reveals Complainant was counseled about his performance in December 2008. A second counseling letter was prepared for further performance problems in March of 2009, but it was not issued because Complainant on leave. While he was on leave, allegations that he had threatened other co-workers and his supervisor surfaced, and he was terminated.
Complainant provided statements from others who suggest that Complainant was not at fault for the performance problems, and contend that the supervisor made negative comments about PTSD. The record reveals Complainant's supervisor provided information about Complainant's performance to Human Resources, who made the decision to terminate. See MW testimony at p. 11. As support of the termination, the Assistant Chief of Police and Complainant's Supervisor both testified that Complainant failed to complete vehicle run sheets, failed to dispatch drivers to pick up patients, and assigned a vehicle for a run which was already being used elsewhere. See id. and WW testimony. Complainant's supervisor denied knowledge of Complainant's PTSD and denied making any statements about Complainant or other's having PTSD. He did state that he informed his employees that some patients may have PTSD or other problems, and should be treated with concern and care.
Ultimately, the Supervisor and Assistant Chief of Police testified that they worked with Complainant on his performance deficiencies, but once they learned Complainant had threatened to kill others, determined termination was the only option. Complainant did not refute the testimony and documentary evidence in the record that he threatened to kill his supervisor or his co-workers. Although we are troubled by the suggestion that the Supervisor commented negatively on Complainant's PTSD, we find he failed to prove, more likely than not, that a discriminatory motive was involved in the decision to terminate him. Complainant did not present any other persuasive evidence of a discriminatory motive, and notably, did not dispute that he threatened to kill his supervisor.
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
3/15/12
Date
2
01-2010-3478
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103478