Murray C.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJun 14, 20180120161525 (E.E.O.C. Jun. 14, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Murray C.,1 Complainant, v. Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120161525 Hearing No. 430-2013-00323X Agency No. 200I-0319-2013100151 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated March 11, 2016, finding no discrimination regarding his 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. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the relevant time, Complainant was employed by the Agency as a Senior Veterans Service Center Representative (SVSR), GS-10 at its Regional Hospital in Columbia, South Carolina. On November 5, 2012, Complainant filed his complaint alleging discrimination in reprisal for prior EEO activity when: (1) By memorandum dated March 12, 2012, he was issued a proposed admonishment; (2) By memorandum dated July 3, 2012, he was issued a proposed suspension; and 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. 0120161525 2 (3) By memorandum dated August 2, 2012, he was notified that the decision was made to suspend him for 10 days, effective August 6 - 10, 2012, and August 13 - 17, 2012. The record indicates that at the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 5, 2016, the AJ, after a hearing, issued a decision finding no discrimination, which was implemented by the Agency in its final order. 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). Despite Complainant’s contentions on appeal, we do not find any improper conduct on the part of the AJ during hearing process. In this case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the alleged incidents.2 At the relevant time, Complainant was a GS-10, SVSR at the Agency’s Regional Hospital in Columbia, South Carolina. Regarding claim (1), the AJ stated that Complainant was issued a proposed admonishment on March 12, 2012, for being absent without leave on January 23, 2012. Complainant acknowledged that he did not get a prior approval from his supervisor (S1) for his unscheduled personal leave at issue. Regarding claim (2), Complainant’s second level supervisor (S2) indicated that he issued Complainant the July 3, 2012 proposed suspension at issue. Therein, S2, rescinding the March 12, 2012 proposed admonishment, described in claim (1), was proposing to suspend Complainant for 10-calendar days for: taking leave without prior approval on January 23, 2012, and May 2, 2012; being absent from 8:45 am through 10:45 am during his scheduled work hours 2 It is noted that the AJ included as a discussion, without amending the complaint, a claim of race based discrimination in the instant case because Complainant presented his race (African- American) throughout the complaint and testimony. 0120161525 3 on May 10, 2012; his disrespectful comments towards S1 on May 24, 2012; and his disrespectful conduct toward his coworker on June 12, 2012. Specifically, S1 stated that on May 24, 2012, while S1 was collecting production data, Complainant told S1 “I am not going to deal with you today” and “yeah, are you hard of hearing; get out of my cubicle; and get out of my way.” The AJ stated that on June 12, 2012, Complainant and his coworker had a disagreement concerning claim processing procedures. The coworker testified that Complainant yelled at her in a hostile manner on the phone and in her cubicle area. The coworker testified that she was concerned for her personal safety and she called for assistance from S1 which prompted Complainant to leave her cubicle and return to his work area. Complainant acknowledged that he was upset because the coworker refused to process a certain case as he instructed and he then had a heated discussion with her about her refusal to process the case. The AJ did not find Complainant’s contentions to be credible because a number of employees provided statements that corroborated the coworker’s account of what transpired with him. Regarding claim (3), Complainant’s Assistant Director issued Complainant his August 2, 2012 decision to suspend Complainant for 10-calendar days, effective August 6 - 10, 2012, and August 13 - 17, 2012, as set forth in claim (2), above. The AJ stated that Complainant failed to show by a preponderance of the evidence that the Agency’s proffered reasons were pretextual. After a review of the record, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Upon review, we find that the AJ’s factual findings of no discriminatory intent are supported by substantial evidence in the record.3 CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, the Agency’s final order finding of no discrimination is AFFIRMED because the AJ’s decision is supported by substantial evidence. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 3 The AJ noted that on July 26, 2013, Complainant was subsequently removed from his position for disrespectful conduct and on May 30, 2014, an arbitrator upheld the Agency’s decision to remove him. This removal incident is not at issue. 0120161525 4 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. 0120161525 5 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 June 14, 2018 Date Copy with citationCopy as parenthetical citation