0120101244
07-12-2010
Booker T. Washington, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Booker T. Washington,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101244
Agency No. 2003-0580-2008104461
DECISION
On January 13, 2010, Complainant filed an appeal from the Agency's
December 15, 2009 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
During the relevant period, Complainant worked as a Housekeeping Aide
in the Environmental Management Section (EMS) of a Texas medical center
of the Agency. Complainant filed a formal EEO complaint alleging that
the Agency discriminated against him on the bases of race (Black), sex
(male), and reprisal for prior protected EEO activity when (1) his
Supervisor revealed personal information to his coworkers, which he
learned in August 2008, (2) in August 2008 and November 2008, he was
not allowed to work overtime, (3) the agency failed to select him for
a Housekeeping Work Leader or a Supervisory Housekeeping Aide position,
and (4) in August 2008, management issued him a letter of counseling.
The agency dismissed (1) pursuant to 29 C.F.R. 1614.107(a)(1) for
failure to state a claim, and accepted the remainder of the claims
for investigation. During the Agency investigation, for the August
2008 incident of (2), a Housekeeping Aide Supervisor (S1) stated that
he saw Complainant in a guest visiting lounge in his work uniform,
but without a badge and indicating that he was not on the clock; and
Complainant was belligerent when he suggested he get a temporary badge
from agency police. June 10, 2009 Deposition of S1. An EMS Manager (S2)
stated that he did not allow Complainant to work overtime in November
2008 because complainant did not work regular hours the day before and
there was a precautionary policy to prohibit employees from working
overtime if they called out sick within two days of requesting overtime.
June 12, 2009 Deposition of S2, at 7.
Regarding the Housekeeping Work Leader position, a Human Resources
Specialist (HR1) stated that a review panel did not refer Complainant
to the selecting official as "best qualified" because he received a
"10" rating, which was the minimum to be considered qualified; and
the panel only referred those who received "12" or higher. June 4,
2009 Deposition of HR1 (HR1 Deposition), at 12. As to the Supervisory
Housekeeping Aide position, HR1 stated that Complainant received a "12"
rating and the review panel only referred candidates who received "15"
or higher. HR1 Deposition, at 24. HR1 noted that various factors affect
the break between scores received and the minimum score required for
referral as "best qualified." For (4), an EMS Supervisor (S3) stated
that the Agency issued Complainant the written counseling for absence
from his unit without official authorization as he was called several
times to immediately clean a bed for a patient waiting in the Emergency
Room and he did not respond. June 1, 2009 Deposition of S3, at 25.
At the conclusion of the Agency investigation, it 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). In accordance
with Complainant's request, the Agency issued a final decision. In its
final decision, the Agency found no discrimination. Specifically, the
Agency concluded that Complainant failed to show that the legitimate,
nondiscriminatory actions articulated by the Agency for its actions
were pretext for discrimination. In its decision, the Agency stated
"a complainant's subjective belief that the management action at issue
was the result of discrimination is insufficient to prove pretext."
December 15, 2009 Final Agency Decision, at 12. Further, it indicated
that, regarding the non-selections in (3), Complainant failed to show
that his qualifications were "plainly superior" to the selectees. Id.
The instant appeal from complainant followed, in which he reiterated
prior contentions and added that he "consistently received positive
performance reviews and have been a responsible, hard-working employee."
January 12, 2010 letter from Complainant.
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 such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must
generally establish 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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct.
See U. S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, we find that Complainant failed to rebut management's explanations
for its actions. There is simply insufficient evidence to conclude that
the Agency actions alleged by Complainant were motivated by unlawful
animus rather than the legitimate, nondiscriminatory reasons articulated
by the Agency. We conclude that Complainant failed to establish pretext.
Based on a thorough review of the record, we AFFIRM the final agency
decision finding 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
July 12, 2010
__________________
Date
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0120101244
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101244