0120121734
03-17-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121734
Hearing No. 450-2011-00147X
Agency No. 200P05042010104503
DECISION
On February 24, 2012, Complainant filed an appeal from the Agency's January 26, 2012, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Accounts Receivable Technician at the Agency's Healthcare System facility in Amarillo, Texas.
On September 17, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic) and sex (male) when:
1. From April 11, 2010 to July 16, 2010, Complainant was only credited six (6) hours annual leave per pay period versus eight (8) hours.
2. On July 2, 2010, Complainant received a Termination letter effective July 16, 2010.
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. Over Complainant's objections, the AJ assigned to the case granted the Agency's July 13, 2011, motion for a decision without a hearing and issued a decision without a hearing on November 22, 2011.
The AJ determined that there were no material facts in dispute. The AJ then concluded that the Agency articulated legitimate, nondiscriminatory reasons for its actions. As to claim (1), the AJ noted that the Agency presented evidence that several individuals within Human Resources reviewed Complainant's personnel file and determined how much credit he should be give for prior federal service. Based on his record, the Human Resources Officials determined that Complainant had more than three but less than fifteen years of creditable service. Therefore, they found Complainant to be entitled to six hours of leave a pay period.
As to claim (2), the Office of Personnel Management (OPM) conducted a background investigation which indicated that Complainant had lied on his application for employment. Specifically, Complainant had been employed from 2008-2009 by another agency which recommended his removal. Complainant resigned rather than face a removal action. On his application for employment with the Agency, Complainant answered "no" when asked if he had, in the past five years, resigned from a federal job after having been informed of a possible discharge. Based on the information from OPM, management and Human Resources agreed that Complainant should be terminated during his probationary period for this offense.
Based on the record, the AJ found that the Agency had provided legitimate, nondiscriminatory reasons for its decision to provide Complainant with six hours of leave a pay period and to terminate him. The AJ turned to Complainant to prove that the Agency's proffered reasons were pretext for discrimination. The AJ found that Complainant failed to present facts to show that the Agency's actions were motivated by discrimination. Therefore, the AJ concluded that Complainant failed to demonstrate that the Agency subjected him to discrimination based on his sex and/or national origin.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
This appeal followed. On appeal, Complainant asserted that the Supervisor and the Chief provided inconsistent affidavits. The Chief indicated that the Supervisor suggested removing Complainant while the Supervisor stated that it was the Chief. As such, he argued that he was subjected to discrimination.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Complainant asserted that there was a material fact in dispute. He noted that the Chief and the Supervisor provided affidavits stating that the other recommended removing him. However, we find that this issue is not material. The evidence clearly showed that OPM informed the Agency's Human Resources Office of the background check and Complainant's false response to one of the questions. Then Human Resources consulted with Complainant's management about whether to terminate him. The Chief and the Supervisor clearly discussed the matter and the Chief asked the Supervisor if he had a problem with Complainant's termination. Neither the Chief nor the Supervisor had a problem with the termination. The Chief informed the Chief of Human Resources who issued Complainant the termination letter. The identified inconsistent statements given by the Supervisor and the Chief are not material to resolution of this case because the record clearly indicated that regardless of who recommended removal to the other, they both eventually agreed upon the termination of Complainant during his probationary period. As such, upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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 persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the AJ correctly determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that a review of Complainant's personnel record entitled him to six hours of leave a pay period and that OPM determined that he provided a false answer on his application for employment with the Agency. Further, the AJ properly concluded that Complainant failed to establish that the Agency's reasons were pretext for discrimination. Accordingly, we find that Complainant has not shown that the Agency's actions constituted unlawful discrimination based on his sex and/or national origin.
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 final action adopting the AJ's 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
March 17, 2015
__________________
Date
2
0120121734
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121734