0120130234
09-19-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120130234
Agency No. 2003-0785-2012100067
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's September 10, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Beginning in November 2010, Complainant worked as an Assistant Canteen Chief,
VC-1101-12, for the Veterans Canteen Service (VCS) in Biloxi, Mississippi. The salaried position involved managing the day-to-day operations of the retail store, the food court and cafeteria, and the vending program. From November 2010 to July 2011, Complainant's First Level Supervisor was the Former Canteen Chief (FS1 - female, no disability, 43). Beginning in September 2011, Complainant's First Level Supervisor was the Canteen Chief (S1 - female, no disability, 52). At all times, Complainant's Second Level Supervisor was the Regional Manager (S2 - male, no disability, 56) and Complainant's Third Level Supervisor was the Associate Director for Field Operations (S3 - male, no disability, 48).
According to Complainant, he was forced to work extended hours beyond the 40-hour work week - up to 77 hours per week - from June 18, 2011 to October 4, 2011. Specifically, Complainant alleged that this began during the transition from FS1 to S1 and continued after S1 arrived because S1 was unable to run the place by herself.
On October 4, 2011, S1 issued Complainant a notice of proposed removal for inappropriate conduct. The notice cited the following five specifications: (a) on September 14, 2011, Complainant was loud and aggressive with a Food Service Worker (C1), cut her off mid-sentence and told her to watch her attitude, told her that she could not tell him what to do because he was the boss, and told her that she could not speak to her union representative; (b) on September 13, 2011, Complainant questioned a Food Service Worker (C2) about a work task in a loud and angry voice, told her to "get that look off her face," and stood over her in an intimidating manner while she worked; (c) on September 13, 2011, Complainant approached a Sales Clerk (C3) when she was getting out of her vehicle and spoke to her in a loud and aggressive manner about a work task; (d) on September 6, 2011, the Acting Regional Manager (C4) reported that, during the three-week period he was at the VCS in Biloxi, Complainant was very difficult to work with and highly argumentative; and (e) on September 5, 2011, Complainant was argumentative with S1 when she asked him to complete a work task and moved into S1's proximity in a manner that made her feel as if he was going to strike her with his hand. The record contains September 2011 written statements from C1, C2, C3, C4, and S1 describing Complainant's inappropriate conduct. On October 26, 2011, S2 issued a decision to remove Complainant, effective November 4, 2011.
On November 22, 2011, Complainant filed an EEO complaint1 alleging that the Agency discriminated against him on the bases of sex (male), disability (August 2011 on-the-job knee injury), age (62), and reprisal for prior protected EEO activity when:
1. From June 18, 2011 to October 4, 2011, he was required to work up to 77 hours per week; and
2. Effective November 4, 2011, he was removed from his position.
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). In accordance with Complainant's request, 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 sex, disability, age, or reprisal discrimination as alleged. Complainant then filed the instant appeal.
Standard of Review
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 EEO MD-110, Ch. 9, � VI.A (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").
Disparate Treatment - Sex, Disability, Age, and Reprisal
To prevail in a disparate treatment claim absent direct evidence of discrimination, a 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). A complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 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, the 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Claim 1 - Extended Work Hours
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of sex, disability, age, and reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, FS1 averred that she did not require Complainant to work extended hours, but did require him to complete projects that could be completed in an eight-hour period. Similarly, S1 averred that she did not require Complainant to work extended hours, but that managers can choose to work longer hours if they cannot finish their duties in an eight-hour period. Moreover, S2 averred that work hours depend on the needs of the service and that all salaried employees may have to work extended hours based on workload and what they need to accomplish.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for discrimination. On appeal, Complainant maintained that he regularly worked extended hours, cited examples of when he worked extended hours, and argued that no one could finish the workload in a 40-hour week.
Upon review, we find that Complainant failed to show that the Agency's reasons were pretextual. Even if Complainant worked extended hours, the record does not show that he was singled out to do so because of his sex, disability, age, or prior EEO activity. Instead, the record shows that it was not uncommon or unexpected for VCS managers to work more than 40 hours. Specifically, Chapter 15-3 of the Agency's General Human Resource Policy states, "VCS managers are assigned work schedules that do not exceed 8 hours a day or 40 hours per week. VCS encourages its managers to operate within the parameters of established schedules. Work beyond established schedules, however, may be necessary and is expected in order to meet operating demands or customer service standards." In addition, S3 and C4 averred that VCS managers regularly worked extended hours; S3 averred that the average was 40 to 50 hours per week whereas C4 averred that the average was 50 to 60 hours per week. Although Complainant may have worked extended hours, particularly during a time when the facility was transitioning between FS1 and S1, the record evidence does not reflect that it was based on sex, disability, age, or prior EEO activity.
Claim 2 - Removal
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of sex, disability, age, and reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, Complainant's aggressive conduct. Specifically, FS1 averred that she had concerns about Complainant's aggressive behavior based on her personal interactions with him and complaints she received from employees about how he treated them. In addition, S1 averred that Complainant's behavior was unbecoming of a manager and that he was very aggressive with the way he spoke to people and "came at" people. Finally, S2 averred that the Complainant's removal was based on the five specifications listed in the notice of proposed removal.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for discrimination. On appeal, Complainant argued that he was wrongfully terminated without procedural due process. Specifically, Complainant asserted that the written statements from C1, C2, C3, C4, and S1 were inaccurate, exaggerated, and unsubstantiated by witnesses. Regarding C1, C2, and C3, Complainant contended that they were coached by S1 on what to write. Regarding S1, Complainant contended that the incident could not have occurred because he was on leave that day. In addition, Complainant asserted that the Agency did not inform him about the written statements until he received his notice of proposed removal and did not adhere to the concept of progressive discipline because he had no prior discipline involving inappropriate conduct. Finally, Complainant cited a positive performance appraisal from FS1 as evidence that he did not have performance or conduct issues.
Upon review, we find that Complainant failed to show that the Agency's reason was pretextual. The record contains September 2011 written statements from C1, C2, C3, C4, and S1 describing Complainant's inappropriate conduct. The record also contains affidavits from C1, C2, C3, C4, and S1 averring that Complainant engaged in the inappropriate conduct as described in their written statements. Although Complainant disputed the accuracy of those written statements, Complainant did not show that the Agency's reliance on them was motivated by sex, disability, age or reprisal. As to Complainant's assertion about C1, C2, and C3, we find no evidence in the record that S1 coached them on what to include in their written statements. C2 averred that management did not ask her to write the statement. C1 and C3 averred that S1 asked them to write the statements, but it is clear from their affidavit testimony that S1 only asked them to document what actually happened. As to Complainant's assertion about S1, we find no evidence in the record that Complainant was on leave that day. Moreover, although Complainant believed that the Agency should have informed him about the written statements prior to his proposed removal, Complainant did not show that the Agency's failure to do so was motivated by discrimination.
As to Complainant's assertion about the lack of progressive discipline, we agree that the record contains no evidence that the Agency formally disciplined Complainant prior to his removal. We find, however, that the lack of progressive discipline does not indicate discrimination. In so finding, we note that the Agency's Table of Penalties permits a maximum penalty of removal for the first offense of disrespectful conduct. As to Complainant's assertion about the positive performance appraisal from FS1, we find that is irrelevant to the removal. Specifically, the performance appraisal covered the period from November 2010 to February 2011 whereas the events that led to Complainant's removal occurred in or around September 2011.
Complainant, on appeal, maintained that he was wrongfully terminated without procedural due process. We emphasize that the focus of our inquiry is whether or not discrimination occurred. We note that an employer's business decision cannot be found discriminatory simply because it appears that the employer acted unwisely, or that the employer's decision was in error or a misjudgment. EEOC Compliance Manual, Section 15, "Race and Color Discrimination," No. 915.003, � V.A.2 (Apr. 19, 2006). Here, Complainant failed to establish that his removal was discriminatory.
Conclusion
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final decision because the preponderance of the evidence does not establish that sex, disability, age, or reprisal discrimination occurred.
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
_9/19/14_________________
Date
1 Complainant's also alleged that the Agency discriminated against him: (i) on the basis of unfair labor practices; and (ii) when it did not select him for the Canteen Chief position in August 2011. On January 10, 2012, the Agency dismissed the additional basis because it was not covered by EEO regulations and dismissed the additional claim because it had not been, and was not like or related to a matter that had been, brought to the attention of an EEO Counselor. Complainant did not specifically challenge the dismissals on appeal. Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � IV.A (Nov. 9, 1999). Accordingly, we will not address the dismissals in our decision.
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0120130234
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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