0120141541
07-20-2016
Neil M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Neil M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141541
Hearing No. 410-2013-00280X
Agency No. 2001-0316-2012103665
DECISION
On March 19, 2014, Complainant filed an appeal from the Agency's February 14, 2014, 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. 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 order.
ISSUE PRESENTED
The issue presented is whether substantial evidence in the record supports the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision, after a hearing that Complainant did not establish that the Agency subjected him to disparate treatment on the basis of reprisal for prior protected EEO activity when it terminated his employment during his probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Veterans Service Representative (VSR), GS-0996-07, at the Agency's Atlanta Regional Office, Veterans Service Center in Georgia. Complainant began working as a VSR on July 5, 2011 and was subject to a one-year probationary period. Complainant's first-level supervisor was the Supervisory VSR (S1). Complainant's third-level supervisor was the Veterans Service Center Manager (S3).
VSRs collected and organized the evidence needed to decide whether a veteran who claimed disability benefits had a service-connected disability. The Agency expected VSRs to meet a daily production standard of 4.5 weighted actions. On April 1, 2012, Complainant went on the daily production standard.
In April and May 2012, S1 issued Complainant several memos criticizing his performance. On April 9 and May 29, S1 stated that Complainant failed to comply with the workload management plan when he did not submit his weekly progress reports for the weeks of April 2, May 14, and May 21. On April 18, S1 stated that Complainant failed to follow instructions when, on April 15, he came into the office intending to work overtime even though his request to do so was denied.
On June 15, 2012, S1 criticized Complainant's performance in a memo to S3. Specifically, S1 stated that Complainant did not meet the daily production standard of 4.5 weighted actions in April (1.41 weighted actions) or May (2.18 weighted actions). In addition, S1 stated that, when Complainant was asked if S1 could do anything to help improve his performance, his only response was to suggest ways that S1 could be a better supervisor. Further, S1 stated that Complainant was absent without leave (AWOL) on April 26. Finally, S1 stated that Complainant failed to comply with the workload management plan when he did not submit his weekly progress reports for the weeks of May 7, 14, and 21.
An ASPEN2 performance totals report listed the daily production for several VSRs, including Complainant and another probationary employee (C1) supervised by S1. For the period of
April 1 to June 15, 2012, Complainant's daily production was 2.01 weighted actions whereas C1's daily production was 4.35 weighted actions.
EEO Complaint
On September 7, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when, effective June 28, 2012, the Agency terminated his employment during his probationary period. Specifically, Complainant alleged that he engaged in prior protected EEO activity when, at a May 2012 staff meeting, he complained to S3 about racist and sexist comments made by S1.
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 AJ. Complainant timely requested a hearing. On December 19, 2013, the AJ held a partially video-conferenced hearing.3
On February 5, 2014, the AJ issued a decision concluding that Complainant did not establish that the Agency subjected him to disparate treatment on the basis of reprisal for prior protected EEO activity.
Regarding the May 2012 staff meeting, the AJ found the following facts: Complainant was one of several employees who complained to S3 about S1's aggressive management style. The employees complained that S1 pushed too hard and monitored their progress several times a day. Complainant was not particularly vocal. None of the employees, including Complainant, accused S1 of any discriminatory conduct. The meeting occurred when S1 was away for training. After the meeting, S3 shared the employees' complaints with S1, but did not identify Complainant as the source of any of those complaints. S1 did not tell Complainant, shortly after the meeting, that he would try to get Complainant terminated.
Regarding S1's conduct in general, the AJ found the following facts: S1 told his subordinates to take down pictures of President Obama and related paraphernalia that they displayed in their work area, but Agency policy was that employees could only display an official portrait of the President or photos that were issued by the White House. Although S1 made a comment along the lines of, "President Obama is not my president because I am a Republican," Complainant never complained to anyone, prior to his termination, about anything S1 said about the President.
In making the above factual findings, the AJ credited hearing testimony from the following witnesses: (1) a VSR (CW1) who attended the May 2012 staff meeting and who was supervised by S1; (2) a VSR (CW2) who was a union steward and who fielded complaints from Complainant and other employees about S1's management style; and (3) S3.
Initially, the AJ found that Complainant did not establish a prima facie case of reprisal discrimination. Specifically, the AJ found that Complainant did not engage in protected EEO activity prior to his termination because he did not oppose discrimination or participate in the statutory complaint process. Next, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, Complainant fell far short of the daily production standard that it expected VSRs to meet and he had other performance issues as described in S1's memos. Finally, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was pretextual. Specifically, the AJ found that the Agency's criticisms of Complainant's performance were valid. The AJ noted Complainant's argument that the Agency did not terminate C1, who also did not meet the daily production standard of 4.5 weighted actions. The AJ, however, reasoned that "it made perfect sense" for the Agency to take note of the size of the shortfall in deciding whether to terminate a probationary VSR and the fact that it terminated Complainant, who was producing less than half as much as C1 (2.01 weighted actions versus 4.35 weighted actions), was not evidence of discrimination.
The Agency subsequently issued a final order fully implementing the AJ's decision. Complainant then filed the instant appeal.4 On appeal, Complainant states that he "would like to file for an appeal" and highlights the AJ's factual finding that S1 made a comment along the lines of, "President Obama is not my president because I am a Republican."
ANALYSIS AND FINDINGS
Standard of Review
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. Nat'l Labor Relations Bd, 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, at 9-17 (Aug. 5, 2015).
On appeal to the Commission, the burden is squarely on the party challenging the AJ's decision to demonstrate that the AJ's factual determinations are not supported by substantial evidence. See id. at 9-18. In this case, this means that Complainant has the burden of pointing out where and why the AJ's findings are not supported by substantial evidence. Cf. id. (pointing out that "[t]he appeals statements of the parties, both supporting and opposing the [AJ's] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ's] factual determinations are supported by substantial evidence").
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13.
A complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Protected activity consists of opposition to discrimination or participation in the statutory complaint process. EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at Charge-Processing Outline (May 20, 1998) (Compliance Manual). An example of opposition includes complaining to anyone about alleged discrimination against oneself or others. Id. at 8-II.B.2. A complaint about an employment practice constitutes protected opposition only if the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination. Id. If an individual make a broad or ambiguous complaint of unfair treatment, such a protest is protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination. Id.
The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Typically, pretext is proved through evidence that the agency treated the complainant differently from similarly situated employees or that the agency's explanation for the adverse action is not believable. Compliance Manual, at 8-II.E.2. Pretext can also be shown if the agency subjected the complainant's work performance to heightened scrutiny after he engaged in protected activity. Id.
Upon review, we find that substantial evidence in the record supports the AJ's finding that Complainant did not establish that the Agency subjected him to disparate treatment on the basis of reprisal for prior protected EEO activity when it terminated his employment during his probationary period.
First, we agree with the AJ that Complainant did not establish a prima facie case of reprisal discrimination. Specifically, we emphasize that the AJ made a credibility determination, after observing and listening to the testimony of CW1, CW2, and S3, that Complainant never complained (at the May 2012 meeting or at any time before his termination) about alleged discrimination by S1. We accept the AJ's credibility determination because Complainant does not point to any objective evidence that contradicts that testimony and that testimony does not so lack in credibility that a reasonable fact finder would not credit it.
Second, even if we assume, arguendo, that Complainant established a prima facie case of reprisal discrimination, we agree with the AJ that Complainant did not prove, by a preponderance of the evidence, that the Agency's articulated reason for his termination was pretextual. Specifically, the documentary evidence in the record reflects that the Agency expected VSRs to meet a daily production standard of 4.5 weighted actions, but Complainant's daily production from April 1 to June 15, 2012, was only 2.01 weighted actions. In addition, the documentary evidence in the record reflects that Complainant and C1 were not similarly situated because Complainant's unsatisfactory performance was much more egregious (2.01 weighted actions versus 4.35 weighted actions, compared to the standard of 4.5 weighted actions). Moreover, the documentary evidence in the record reflects that S1's criticisms of Complainant's work performance predated the May 2012 staff meeting. Finally, as to the AJ's factual finding that S1 made a comment along the lines of, "President Obama is not my president because I am a Republican," we find that such a comment is not evidence of a retaliatory motive by S1.
CONCLUSION
Substantial evidence in the record supports the AJ's decision, after a hearing that Complainant did not establish that the Agency subjected him to disparate treatment on the basis of reprisal for prior protected EEO activity when it terminated his employment during his probationary period. Therefore, 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 order finding no reprisal discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
_7/20/16_________________
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 The Agency used the ASPEN database system to track VSR productivity.
3 Two of the five witnesses testified via video-conferencing. In Allen v. U.S. Postal Serv., EEOC Appeal No. 01A51259 (Aug. 21, 2006), the Commission approved video-conferencing as an acceptable alternative to an in-person hearing. The record does not show that, either during the hearing or thereafter, the parties raised any objection to the video-conferencing.
4 On March 19, 2014, Complainant filed the appeal along with a supporting statement. On July 18, 2014, Complainant filed another supporting statement. Any supporting statement must be filed within 30 days of filing the appeal. See 29 C.F.R. � 1614.403(d). Accordingly, we decline to consider Complainant's supporting statement filed on July 18, 2014, as it was untimely filed.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120141541
2
0120141541