0120132165
05-05-2015
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120132165
Hearing No. 410-2011-00083X
Agency No. 200105082010103297
DECISION
Complainant filed an appeal from the Agency's June 8, 2012 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aide at the Atlanta VAMC in Decatur, Georgia.
On July 1, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and reprisal for prior protected EEO activity when:
(1) on April 28, 2010, his request for 30 days of advanced sick leave was denied;
(2) on April 28, 2010, he was removed from his work area after notifying management that he was filing "discrimination charges" against them;
(3) on April 30, 2010, he was issued a formal admonishment;
(4) on May 20, 2010, management did not respond to his request for a reasonable accommodation;
(5) on July 18, 2010, he had to assist two other employees (African American) in another work area before reporting to his normal work area in audiology; and
(6) he was issued a five-day suspension in August 2010.
The Agency accepted the complaint for investigation. In brief, the investigation revealed the following evidence concerning Complainant's claims:
Claims 1 and 4
Information in the record indicates with respect to claims 1 and 4, Complainant sought to be given 30 days of advanced sick leave that he could use when he was "feeling stressed" and needed to take a few days off from work. In response, his supervisors denied that Complainant ever made such a request or provided any medical documentation supporting such a request. While Complainant indicates that he made the request was made orally,1 he concedes he did not submit any medical documentation supporting the request.
Claims 2 and 5
The record reflects that when Complainant returned to work after an extended absence, management did not put him back to work in the Mental Health department, where he had previously been assigned, because, according the management witnesses, they had assigned someone else to work in that location. Complainant was assigned instead to work as a rover, which involved cleaning different areas as needed and covering for employees who were absent. Complainant asserts that the real reason he was not returned to his prior work area was retaliation for telling management he was filing "discrimination charges." Complainant asked to be assigned to a permanent location. His request was granted and he was assigned in work in the audiology department. However, the record contains emails indicating that employees in audiology complained that Complainant made inappropriate remarks to them, and they asked that he come later in the day after the audiology staff had left. In response, Complainant was assigned to work elsewhere from 3:15 p.m. to 6:00 p.m., and then at 6:00 he would go to audiology.
Claims 3 and 6
These claims concern Complainant's attendance. Basically, according to management witnesses, Complainant was frequently absent from work, sometimes for long periods of time, without calling in or not identifying the kind of leave he wanted used. As such, he was charged with being absent without leave (AWOL). As a result of the AWOL on his record, he was first issued a formal admonishment and later a five-day suspension. Management witnesses stated that when Complainant brought in documentation relating to hospitalizations, his AWOL charges would be changed to sick leave if he had it or leave without pay. However, they asserted that even after these changes Complainant had numerous other AWOL charges that supported the need for progressive discipline. It is undisputed that Complainant did not respond to or challenge the admonishment when it was issued, so management was not put on notice that Complainant believed that some of the dates he was charged with AWOL were incorrect before the suspension was issued. Management witnesses indicated that after the suspension, there were no further incidents. The record also includes evidence of discipline taken against black employees for similar infractions.
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 Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing.
The AJ assigned to the case set the hearing for November 10, 2011. Complainant failed to appear on that date and did not explain his absence. On December 1, 2011, the AJ ordered Complainant to "show cause" why his complaint should not be dismissed without a hearing. On December 8, 2012, Complainant provided medical documentation indicating that he had been incapacitated since October 2011, as a result of a hospitalization for depression, suicidal ideation, poor focus and poor stress tolerance. The incapacitation was expected to last another 6-8 weeks. On January 5, 2012, the AJ, after reviewing Complainant's documentation, rescheduled the hearing for March 12, 2012.
However, on March 2, 2012, the Agency filed a motion to dismiss the complaint as a sanction for contumacious conduct, alleging the Complainant had threatened to kill the responsible management officials, as well as innocent bystanders, should his EEO complaint not be decided in his favor.
By Order dated March 26, 2012, the AJ assigned to the case dismissed the complaint as a sanction against Complainant based on what he determined were credible threats of violence against Agency employees, abuse and/or misuse of the EEO process, and conduct detrimental to the proper adjudication of the complaint.
In a final order dated June 8, 2012, the Agency fully implemented the AJ's Order of Dismissal. The instant appeal followed.
ANALYSIS AND FINDINGS
AJ's Decision to Dismiss Hearing and Complaint
In the instant case, the AJ dismissed the request for a hearing and the formal complaint with prejudice. The AJ found that, in January 2012, Complainant was voluntarily committed to a hospital for mental health services and treated for suicidal and homicidal thoughts. Complainant allegedly told his treating psychiatrist, as well as other hospital staff members, that he was contemplating killing his supervisors if he should not prevail on his EEO complaint and shared with them some details of his plan to do so. Eventually, the hospital staff notified the Agency of Complainant's threats. On February 9, 2012, a warrant was issued for Complainant's arrest, and he was arrested at the hospital and incarcerated at the county jail. Complainant apparently was still incarcerated at the time the AJ issued the dismissal order. Based on these facts, the AJ determined the sanction against Complainant was warranted for the credible threats of violence against Agency employees, abuse/misuse of the EEO process, and conduct detrimental to the proper adjudication of the complaint.
EEOC Regulation 29 C.F.R. � 1614.109(f)(3) provides EEOC AJ with the authority to sanction either party. Sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would serve this purpose, an AJ may be abusing his or her discretion to impose a harsher sanction. See Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances where the complainant has engaged in contumacious conduct. See Thomas v. Dep't of Transportation, EEOC Appeal No. 01870232 (Mar. 4, 1988).
This case presents unique circumstances. Credible medical officials treating Complainant reported his homicidal threats against Agency management officials if he did not prevail on his EEO complaint. At the same time, the record indicates that Complainant's behavior was caused by mental conditions for which he was being treated. Contumacious conduct requires an act of free will on the part of the complainant, and that is not clear in this case. Complainant's threats may well be a direct symptom of his mental illness. Nonetheless, regardless of the cause, we do not find that the AJ erred in dismissing Complainant's hearing request. At the time, there was no way to guarantee the safety of Agency personnel from the possibility that Complainant might act on his homicidal ideation. However, we now find that, because there is sufficient evidence in the investigative record on which to base an adjudication on the merits of the discrimination claims, we should go ahead and make that adjudication on appeal. See Ross v. United States Postal Service, EEOC Request No. 05900693 (August 17, 1990).
Race and Retaliation Claims
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 Constr. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for the disputed actions. With regard to Complainant's claim that management in April-May 2010 failed to grant him 30 days of advanced sick leave (claims 1 and 4), management witnesses stated without dispute that the request was not granted because Complainant failed to produce any medical documentation supporting his need for the leave. We also again not that Complainant did not raise a claim of disability discrimination during the processing of his complaint.
Complainant also asserts that after he returned from an extended leave, he was reassigned away from his usual work area in retaliation for threatening to file discrimination charges against his supervisors (claims 2 and 5). However, his supervisors said the decision was made because another employee had to be assigned to work in Complainant's area while he was on the extended leave. When Complainant first returned to work, they assigned him to be a rover - working where needed and taking the place of absent employees. However, when Complainant requested a permanent work assignment, management granted the request and assigned him to audiology. Complaints later received from audiology staff of inappropriate comments resulted in the supervisors having Complainant perform other tasks until 6 p.m. when the Audiology staff went home.
Finally, Complainant asserts he was disciplined more harshly for attendance issues than other similarly situated employees. However, the responsible management officials stated that the progressive disciplinary steps (admonishment then suspension) were taken because Complainant repeatedly incurred AWOL charges by being absent from work without calling in or identifying the kind of leave he wanted to take (claims 3 and 6). The record further indicates that when Complainant brought in medical documentation to support his absences, he was given sick leave or leave without pay if he had no sick leave balance.
We find that Complainant has failed to prove, by a preponderance of the evidence, that the Agency discriminated against him as alleged. Complainant did not show that management's proffered reasons for the disputed actions were a pretext masking race discrimination or unlawful retaliation. In his deposition, Complainant basically states he feels he is being discriminated against because his supervisors are black. This bare assertion, without more, is insufficient to carry his burden of proof. Additionally, the record shows that other employees who were black received discipline for similar infractions.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not proven that he was discriminated against as alleged.
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
May 5, 2015
__________________
Date
1 Complainant did not identify disability discrimination as a basis in his complaint, and his supervisors, at the time of the investigation, stated that they were unaware of any disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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