0120090503
08-23-2011
Drue L. Ferguson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Drue L. Ferguson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090503
Agency No. 200J-0578-2008101406
DECISION
Complainant filed an appeal from the Agency’s October 7, 2008 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.
§ 1614.405(a). For the following reasons, the Commission AFFIRMS
Agency’s Final Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Lead Dialysis Technologist, GS-7, at the Agency’s Edward Hines,
Jr. Veterans Administration Medical Center facility in Hines, Illinois.
On March 28, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of reprisal for prior
protected EEO activity, when:
1. On January 11, 2008, S1, Complainant's supervisor, charged him
45 minutes of AWOL.
2. Complainant was subjected to harassment, including the incident
described in claim (1), together with the following incidents:
b. On January 24, 2008, S1 issued Complainant a letter of inquiry
regarding his failure to follow proper procedures for requesting leave
on January 11, 2008.
c. On January 28, 2008, S1 issued Complainant a letter of inquiry
regarding his failure to enter his outstanding time and leave (132 dates),
scheduled tour exceptions in the computer.
d. On January 24, 2008, S1 issued Complainant a letter of
counseling/warning regarding potential sick leave restriction.
e. During the annual leave solicitation period (January 2008),
Complainant’s scheduled leave requests were disapproved and given to
staff members with lower seniority.
f. On March 18, 2008, Complainant was temporarily detailed; and
g. On July 31, 2008, Complainant was issued a proposed termination.
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).
In its decision, the Agency found that although Complainant established
a prima facie case of discrimination based on reprisal, that the Agency
articulated legitimate, non-discriminatory reasons for its actions.
Specifically, Complainant was charged as being absent without official
leave (AWOL) when he was 45 minutes late to work and did not follow
proper procedures for requesting leave. Agency’s October 7, 2008
Final Decision (Ag Decision) at 10. Complainant’s supervisor,
S1, issued Complainant a letter of inquiry following his failure to
follow appropriate leave procedures because she had repeatedly advised
Complainant of the leave procedures and Complainant chose not to follow
the procedure. Complainant also refused to enter his outstanding time and
leave requests into the computer as S1 directed. The Agency found that
S1 properly warned Complainant about potential sick leave restrictions
based on his multiple incidents concerning leave. The Agency further
found that Complainant’s first preference for holiday leave was
approved and his second preference was not approved because he did
not have sufficient leave accrued to be granted additional time off.
Lastly, the Agency found that Complainant was detailed to other units
while he was under investigation following a report of patient abuse.
Id at 11. After the Agency confirmed the patient’s version of the
events, the Agency proposed terminating Complainant. Complainant’s
ultimate termination is not part of the instant complaint.
The Agency found that Complainant did not establish that reprisal
motivated the Agency’s decisions regarding any of the incidents
described in the complaint. Accordingly, the Decision concluded
that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. Id. at 13.
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 Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57,
67 (1986), that harassment is actionable if it is sufficiently severe
or pervasive to alter the conditions of a complainant's employment.
The Court explained that an "objectively hostile or abusive work
environment [is created when] a reasonable person would find [it]
hostile or abusive:” and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
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).
Complainant must initially establish a prima facie case by demonstrating
that he or she 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation is pretextual. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions which Complainant did not
prove were a pretext for discrimination. The Commission notes that the
Agency found no nexus between Complainant’s prior protected activity
and the incidents described in the complaint. Id. at 12. We agree.
We observe that Complainant does not dispute, for example, that he was
late on January 11, 2008, nor does Complainant dispute the Agency’s
finding that he did not have adequate accrued leave available when he
requested holiday leave that S1 subsequently disapproved. We further
find Complainant did not show that the Agency’s reasons for assigning
Complainant to a detail while an investigation for patient abuse was
pending and ultimately proposing to terminate Complainant, were pretext.
We therefore find that that Complainant did not show that more likely
than not he was subjected to discrimination based on reprisal as alleged.
CONCLUSION
Based on a thorough review of the record we AFFIRM the Agency’s Final
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
August 23, 2011
__________________
Date
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0120090503
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090503