0120065119
05-15-2008
Danny R. Jinks, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Danny R. Jinks,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200651191
Hearing No. 250-2005-00123X
Agency No. 200L-0621-2004-102619
DECISION
On September 6, 2006, complainant filed an appeal from the agency's August
9, 2006, 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
affirms the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as Food Service Supervisor at the agency's Nutrition and Food Service
(NFS) at the James H. Quillen VA Medical Center in Mt. Home, Tennessee.
On June 22, 2004, complainant filed an EEO complaint alleging that he was
discriminated against on the bases of race (Caucasian) and in reprisal
for prior protected EEO activity when:
1. on or about May 5, 2004, he was issued a letter of reprimand for
failing to follow instructions; and
2. he was suspended from June 30, 2004 through July 2, 2004, for failing
to follow instructions.
At the conclusion of the investigation, complainant was provided 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 and the AJ held a hearing on November 1, 2005,
November 18, 2005, December 2, 2005, and January 17, 2006.
The AJ issued a decision on July 27, 2006, finding that complainant
failed to establish by a preponderance of the evidence that he was
discriminated or retaliated against as he alleged. Specifically, the AJ
determined that, assuming complainant established a prima facie case of
race discrimination or retaliation, the agency articulated legitimate,
nondiscriminatory reasons for its actions.
The AJ found that, with regard to claim (1), complainant's supervisor,
the Food Production Manager (FPM), provided the following reasons in her
proposal to reprimand complainant for failure to follow instructions:
Complainant was instructed to post a vacancy for a WG-3 food service
worker assignment for the cold food relief position. Three employees
expressed interest in the assignment. One employee asked complainant if
the assignment would affect the days she had off and that employee stated
that complainant told her that it would. However, the first employee
stated that when another employee asked complainant about whether the
new assignment would affect his days off, complainant stated his days
off would not change. Eventually, the position was given to the third
interested employee. However, when the schedules were posted, selectee
was not put into the position but assigned to another position to which
another employee had already been assigned as a result of complainant's
instructions. The FPM testified at the hearing that employees were
upset about the manner in which the position was handled because the
position was supposed to be posted; complainant should not have asked
employees if they were interested in the position; and when the schedule
was posted, complainant informed another employee that his days off
would not change with the new position. The FPM testified that these
actions caused conflicts because some employees believed that they had
been given incorrect information regarding the position.
On January 23, 2004, complainant called from the domiciliary (dom)
kitchen to report that the chipped gravy was too thin. The FPM instructed
complainant to use cornstarch to thicken the gravy and complainant stated
he knew the procedure to thicken the gravy. The FPM later came to the
area, and the cook and a student were attempting to thicken the gravy.
Rather than following her instructions, complainant had instead procured
bacon and eggs to use on the serving line without permission.
On January 28, 2004, complainant approached a cook in the dom and asked
if she had heard the latest rumor about someone else coming to cook in the
dom. The employee became upset and confronted the cook foreman because she
felt it was a reflection on her performance. The cook foreman confirmed
that she and another employee were changing work locations but that
the change was not made due to any negative aspect of her performance.
In multiple discussions both in person and via email, the service chief
had instructed all supervisors to refrain from spreading gossip and
spreading rumors. Rather than asking his supervisor or the executive
chef regarding the change, complainant spoke to the cook and caused her
to be upset.
With regard to claim (2), the AJ found that on Sunday, April 11, 2004,
complainant was the supervisor on duty and he granted annual leave to four
out of seven of the dom to go home early. Complainant had also granted
annual leave to five out of twenty of the hospital NFS staff for that
same date. On Friday, April 9, 2004, the dom supervisor requested that
the floors be scrubbed that weekend; however, a review of the cleaning
schedules showed that the assigned cleaning tasks in the dom were not
completed. When asked why the cleaning tasks were not complete, the
employees stated that they did not have the time to complete the tasks.
On April 11, 2004, contrary to the practice of the NFS, the schedule
did not include three relief workers to cover for those employees using
leave and two employees had been scheduled as working "extra hours" to
cover vacancies on the evening shift. As such, complainant would have
been precluded from granting of unscheduled annual leave as he did.
The Chief of the Nutrition and Food Service (CNFS) testified at the
hearing that she issued the notice of proposed suspension to complainant
because he failed to follow instructions when he granted the leave
especially after there had been a group meeting with the supervisors
discussing when leave could be approved by a supervisor. Complainant was
told in that meeting that during the weekend in question the floor should
be cleaned with the scrubber; however, complainant allowed employees to
leave early and the floor was not cleaned with the scrubber.
The AJ further found that complainant failed to proffer sufficient
evidence to show that the agency's reasons were a pretext for race
discrimination or retaliation. The AJ found that the fact that the
discipline was issued without good cause did not establish that the agency
acted with discriminatory or retaliatory intent. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged.
On appeal, complainant makes numerous arguments regarding how the
agency's discipline was in violation of the agency's handbook. Further,
complainant argues that he was discriminated and retaliated against.
The agency requests that we affirm its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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 United
States 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 Department 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).
We find that the AJ's finding that the agency articulated legitimate
reasons for issuing complainant the letter of reprimand and the
subsequent suspension is supported by substantial evidence in the record.
Specifically, the agency provided that it disciplined complainant in
claims (1) and (2) for failure to follow instructions on a number of
occasions.
The burden now shifts to complainant to prove that the agency's
proffered reasons were a pretext for discrimination or retaliation.
We find that the AJ's finding that complainant failed to show pretext
by a preponderance of the evidence is supported by substantial evidence
in the record. On appeal complainant makes numerous arguments that the
agency denied him his due process as outlined in the agency's handbook
regarding how he was disciplined; however, we find these arguments
unpersuasive to show that the agency's proffered reasons for disciplining
complainant were a pretext for discrimination or retaliation. Further,
complainant has proffered no evidence to support his contention that
the agency was motivated by retaliatory or discriminatory animus.
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 order adopting the AJ's decision finding that complainant failed
to establish that he was discriminated or retaliated against as he
alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
_____5-15-08____
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120065119
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120065119