0120081030
05-13-2008
Dennis K. Halsey, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Dennis K. Halsey,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081030
Agency No. 200405652006102144
DECISION
On December 24, 2007, complainant filed an appeal from the agency's
November 26, 2007, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
an Addictions Therapist, GS-9, at the agency's Fayetteville VA Medical
Center facility in Fayetteville, North Carolina. On July 27, 2006,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of race (Caucasian) and age (unknown at time of
incident) when, on April 6, 2006, he was constructively discharged from
the agency.
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 requested
a hearing but the AJ denied the hearing request on the grounds that
complainant failed to comply with the AJ's orders. The AJ remanded
the complaint to the agency, and the agency issued a final decision,
pursuant to 29 C.F.R. � 1614.110(b), concluding that complainant
failed to prove that he was subjected to discrimination as alleged.
Specifically, the agency found that complainant failed to establish
a prima facie case of constructive discharge, and even if he did, the
agency articulated a legitimate, nondiscriminatory reason for its action,
namely that complainant did not successfully complete his orientation
for a required computerized patient record system, he was indifferent in
response to a veteran's complaint about his conduct, he was sarcastic in
his responses to management's efforts to correct his performance errors,
and his documentation errors constituted illegal patient record entries.
The agency further found that complainant failed to establish that the
agency's articulated reasons for its action were a pretext for unlawful
discrimination.
Complainant essentially contends that the agency exaggerated many of the
errors he was alleged to have made, and that he received insufficient
training.
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 EEOC Management
Directive 110, 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").
The Commission has established three elements which complainant
must prove to substantiate a claim of constructive discharge: (1) a
reasonable person in complainant's position would have found the working
conditions intolerable; (2) conduct that constituted discrimination
against complainant created the intolerable working conditions; and (3)
complainant's involuntary resignation resulted from the intolerable
working conditions. See Walch v. Department of Justice, EEOC Request
No. 05940688 (April 13, 1995). Following a review of the record, we find
complainant has failed to establish a claim of constructive discharge.
Complainant has documented a series of disagreements and/or conflicts
with managers and coworkers, including an incident when the Assistant
Chief Director (RMO1: African American, age at time of incident
unknown) indicated with her body language that she disapproved of him,
an incident when a coworker (CW: Caucasian, age at time of incident
unknown) responsible for mentoring complainant told him that he needed
to be more specific in his progress notes, an incident when RMO1 called
complainant into her office to discuss errors he had made, as well as
a number of additional, similar, incidents. We find that none of the
incidents, whether viewed individually or taken as a whole, created
working conditions that a reasonable person would have found to be
intolerable, nor has complainant shown that conduct that constituted
discrimination against him created such intolerable working conditions.
Therefore, 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 met his burden of establishing, by a preponderance
of the evidence, that discrimination occurred, and we AFFIRM the FAD
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 13, 2008
__________________
Date
2
0120081030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081030