0120110072
12-23-2011
Archie L. Wall, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Archie L. Wall,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110072
Agency No. 200J05562009104445
DECISION
On August 2, 2010, Complainant filed an appeal from the Agency’s July
15, 2010, final decision 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 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 Gardener at the Agency’s Department of Veterans Affairs Medical
Center in Chicago, Illinois.
On September 28, 2009, Complainant filed an EEO complaint alleging
that the Agency discriminated against him on the bases of race
(African-American) and reprisal for prior protected EEO activity when
management conducted an inquiry into an incident which occurred on
January 30, 2009, which ultimately led to his removal from his position,
effective August 31, 2009.
The Agency conducted an investigation into Complainant’s claims.
The evidence gathered during this investigation shows that his first-level
supervisor, the Operations Supervisor (African American male), submitted
a written report to his superiors indicating that on January 30, 2009,
Complainant came into the workroom screaming about how one of his
co-workers (Co-worker 1) had driven by him in a truck and left him to
walk in the cold. Complainant allegedly called Co-worker 1 a “punk”
and said that he wanted to kill him. The Operations Supervisor said he
told Complainant that Co-worker 1 could not have driven by him, because
he had just gone to the bathroom. At that moment, Co-worker 1 came out
of the bathroom.
The Operations Supervisor said his own supervisor instructed him to send
a letter of inquiry to Complainant detailing the incident and asking for
a written response. The Operations Supervisor also gathered written
statements from two coworkers who witnesses the incident, as well one
from Co-worker 1 confirming the incident occurred as represented by the
Operations Supervisor. These corroborating statements were signed by
the coworkers in February and March 2009.
Based on the Operations Supervisor’s report, as well as the other
witness statements, the Chief of Facility Management (white male)
recommended that Complainant be terminated in a letter of proposed
removal dated on April 9, 2009. The proposal charged Complainant with
“inappropriate conduct in the workplace” as a result of the January
9, 2009 incident. The proposal letter noted that Complainant’s prior
disciplinary record had been considered, including a September 2008
30-day suspension for unauthorized removal of government property and a
March 2000 30-day suspension for unauthorized use of government property.
Complainant responded to the proposal. However, on August 21, 2009, the
Medical Center Director affirmed the proposal and issued a final removal
decision. Prior to this removal decision, the Medical Center Director
offered Complainant a Last Chance Agreement, but he refused to sign it.
Complainant contended that the Operations Supervisor unfairly wrote up
discipline reports about him on numerous occasions and generally treated
him poorly. Complainant argued during the investigation that he was
never given a chance to respond to the allegations and does not agree
with the above version of events.
Co-worker 2, who appears from the record to be Complainant’s friend,
stated in the investigation that he never witnessed Complainant making
threats and that both of them were subjected to a hostile working
environment. Both Complainant and Co-worker 2 alleged an incident,
although they did not specify the date, in which the Operations Supervisor
who is also African American, came up to him and Complainant and called
them “bitch” and “hoe,” made threats, and told them that they
wore women’s underwear.
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). When
Complainant did not request a hearing within the time frame provided in
29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.
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”).
To prevail in a disparate treatment claim absent direct evidence of
discrimination, 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). Complainant carries the initial burden
of establishing a prima facie case by demonstrating that he or she 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, 411 U.S. at 802
n. 13. 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,
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,
120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519
(1993).
The Agency argued in its final decision that Complainant failed to
make out a prima facie case of disparate treatment regarding his
termination because the Agency had not yet hired a new employee to
replace Complainant. Here, the issue is Complainant’s termination and
whether the Agency’s reasons for removing Complainant were a pretext
for discrimination. It is irrelevant as to whether the Agency hired
someone to fill his position. However, the Commission finds that even
assuming arguendo that Complainant was able to establish a prima facie
case of discrimination as alleged, he did not show by a preponderance of
the evidence that the Agency’s legitimate, non-discriminatory reasons
were a pretext for discrimination.
On appeal, Complainant argues that the report of investigation
contains lies and inaccurate information. The Commission notes that
Complainant did not request a hearing where he could have challenged
the credibility of statements made during the investigation. We find
that Complainant has not provided sufficient evidence to prove that
the Agency’s reasons for its action—namely, Complainant’s past
behavioral issues and the January 2009 incident—were not credible
and were a pretext for discrimination. Although the record shows
that Complainant and the Operations Supervisor had a poor working
relationship, the Operations Supervisor’s version of events was
supported by Complainant’s colleagues. Additionally, although the
incident of the Operations Supervisor allegedly calling Complainant and
Co-worker 2 vulgar names, was, if true, unprofessional at best, there is
no evidence that these comments were made out of racial or retaliatory
animus toward Complainant’s protected classes. We find, therefore,
that Complainant has failed to establish pretext.
Finally, to the extent that Complainant is alleging that he was subjected
to a hostile work environment, the Commission notes that harassment of
an employee that would not occur but for the employee's race, color,
sex, national origin, age, disability, religion or prior EEO activity
is unlawful, if it is sufficiently patterned or pervasive. Wibstad
v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing
McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8,
1994). In determining that a working environment is hostile, factors to
consider are the frequency of the alleged discriminatory conduct, its
severity, whether it is physically threatening or humiliating, and if it
unreasonably interferes with an employee's work performance. See Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance
at 6. The Supreme Court has stated that: “Conduct that is not severe
or pervasive enough to create an objectively hostile work environment -
an environment that a reasonable person would find hostile or abusive -
is beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).
After a review of the record, the Commission finds that Complainant's
claims do not constitute discriminatory harassment. The Commission
concludes that Complainant did not prove that he was subjected to conduct
sufficiently severe or pervasive to create a hostile work environment and
that he also failed to prove that the Agency's actions were unlawfully
motivated by his protected classes. Moreover, there is no evidence
that the Agency was motivated by discriminatory animus. Accordingly,
Complainant has not shown that he was subjected to a discriminatory
hostile work environment.
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 FAD and finding of no discrimination.
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
December 23, 2011
__________________
Date
2
0120110072
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110072