Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 13, 2013

0120112437 (E.E.O.C. Feb. 13, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120112437

Hearing No. 430-2010-00238X

Agency No. 2004-0590-2010100156

DECISION

On March 28, 2011, Complainant filed an appeal from the Agency’s February 28, 2011, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Environmental
Management Supervisor at the Agency’s Hampton Veterans Affairs Medical Center. During
the relevant time the Environmental Management Section Program Manager (Person A) was
Complainant’s second-level supervisor.

The record reveals that in 2008 one of Complainant's female subordinates alleged that
Complainant had subjected her to sexual harassment. The Agency conducted an investigation
into the allegations and determined that Complainant had engaged in inappropriate behavior
toward his subordinate employee. Based on the findings of the investigation, the Agency
determined Complainant could no longer supervise the subordinate employee, and on January
12, 2009, the Agency removed Complainant from his previous area of responsibility. In
addition, the Agency ordered certain corrective action, including that Complainant complete
training on Prevention of Sexual Harassment and provided Complainant a written directive that
he stay away from the subordinate employee and Building 110, the housekeeping pass down
room, the location where the subordinate employee worked.
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On November 23, 2009, Complainant filed an EEO complaint, as amended, alleging that the
Agency discriminated against him on the bases of age (over 40) and in reprisal for prior
protected EEO activity when:

1. On September 24, 2009, Complainant was issued a reprimand.

2. On October 21, 2009, Complainant was given his Performance Appraisal that
contained a statement that Complainant "had one valid EEO complaint processed
this rating period."

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). Complainant timely requested a hearing. On February 14, 2011,
the AJ granted the Agency’s motion for a decision without a hearing.

The Agency subsequently issued a final order on February 28, 2011. The Agency’s final order
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

On appeal, Complainant states that on the dates in question he was not harassing anyone.
Rather, he states that he had medical reasons for being in Building 110. Complainant notes he
was instructed to stay away from Building 110 years ago and states he has done this.
However, he explains that because of his medical appointments, he may have to be in the
building.

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”).

In the present case, the Commission determines that there are no genuine issues of material
fact or any credibility issues which required a hearing. Moreover, we find the record in the
present case was fully developed. Under these circumstances, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate.

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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 actions. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t 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, 134
(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. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (December 14, 1995).

With regard to issue (1), the record reveals that Complainant was issued a Letter of Reprimand
on September 24, 2009, for Failure to Follow a Supervisory Directive. Specifically, the
Agency noted that Person A issued Complainant the reprimand for violating the written
directive that he stay away from his former female subordinate employee and the building in
which she worked. The Agency noted that Complainant was seen on three occasions (July 17,
20, and 21, 2009) at the housekeeping room in the basement of Building 110 in violation of his
supervisor's instructions.

The record reveals that Complainant provided a statement admitting that on two occasions he
did go to Building 110 to sign for equipment. Complainant acknowledged that he saw his
former subordinate employee, but stated he left the area when he saw her. Complainant stated
he also saw the former subordinate employee on another occasion at the canteen /retail store in
building 110. Complainant also claimed that he went to Building 110 in connection with
medical appointments as a veteran.

In an attempt to show pretext, Complainant claimed that Person A “favors” other employees.
Specifically, he claimed that two other supervisors (Supervisor 1 and Supervisor 2) had
engaged in similar conduct and one was treated more favorably. However, the record reveals
that the conduct alleged by Complainant with regard to Supervisor 1 relates to medical
absences and the conduct alleged with regard to Supervisor 2 relates to work assignments
formerly given to the Housekeeping Officer (Person B). Thus, we find these situations are not
similar to Complainant’s situation.

In addition, the record reveals that Person A previously issued discipline to Housekeeping Aide
1 for being AWOL, to Housekeeping Aide 2 for reporting to work under the influence of
alcohol, and to Housekeeping Aide 3 for being AWOL. Thus, although those three employees
were issued discipline by Person A, none of the incidents cited in the discipline concerned
failure to follow a supervisory directive, as was involved in Complainant’s situation.
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With regard to issue (2), the Agency claimed that Person A was following the Agency's
“Medical Center Specific Element” titled “EEO” on the supervisors' performance appraisal.
This element states that “Performance standards and appraisals of subordinate supervisors
reflect their accountability to EEO/AA [Affirmative Action] reinforced, as appropriate, by the
identification of any specific actions expected during the rating period.” In his affidavit,
Person A stated that the comment included on the original draft of the appraisal which stated
that Complainant had "one valid EEO complaint processed this rating period" was intended to
reflect the valid complaint made by the female subordinate employee against Complainant.
Person A explained that after consulting with the Human Resources Specialist and prior to
finalizing Complainant’s performance appraisal, he determined that the statement should not be
included in the appraisal and the statement was subsequently removed from the official
appraisal. The record also contains an affidavit from the Human Resources Specialist who
stated that the appraisal with the comment that Complainant “had one valid EEO complaint
processed this rating period” was not included in Complainant’s Official Personnel File.

We note that in his affidavit, Complainant stated that Person A and the Housekeeping Officer
Assistant (Person B) scheduled him for an appointment with Human Resources with regard to
possible retirement dates and asked him when he was going to retire. In addition, Complainant
cited prior conduct of Person B and stated she communicated daily with Person A stating
Complainant was “old,” said Complainant was unable to accept change, and stated she was the
new sheriff in town and Complainant needed to do what he was told. Complainant notes that
Person B is no longer working at the Agency. Assuming that Person A and Person B inquired
about Complainant's retirement plans, we find this is not evidence of age discrimination.
With regard to the remaining comments, we note Complainant does not indicate when the
alleged statements were made and we find Complainant failed to connect the alleged comments
with the reprimand or appraisal at issue.

In the present case, we find the Agency articulated legitimate, non-discriminatory reasons for
its actions. Complainant failed to show by a preponderance of evidence that the Agency’s
actions were based on discriminatory animus.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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:

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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
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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

February 13, 2013
Date