0120112704
10-21-2011
James Campbell, Jr., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
James Campbell, Jr.,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112704
Hearing No. 430-2009-00198X
Agency No. 2004-0637-2008102712
DECISION
On April 15, 2011, Complainant filed an appeal from the Agency’s March
14, 2011, 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. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
The issues presented are whether the Administrative Judge properly issued
a sanction in the hearings process when he dismissed Complainant’s
hearing request, and whether the Agency properly found that Complainant
had not been discriminated against based on race, sex, and in reprisal
for prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Motor Vehicle Operator, WG-6, at the Agency’s VA Medical Center
in Asheville, North Carolina. On July 16, 2008, Complainant filed an
EEO complaint alleging that the Agency discriminated against him on the
bases of race (African-American), sex (male), and in reprisal for prior
protected EEO activity arising under Title VII when:
1. on May 29, 2008, he was issued a reprimand; and
2. he was subjected to harassment, as evidenced by six events dated
from February 4, or 11, 2007, through June 30, 2008, including:
1) on June 30, 2008, management visited Complainant’s work area
to determine his whereabouts and what he was doing; 2) on May 29,
2008, Complainant received a written reprimand; 3) on March 10, 2008,
management proposed a suspension; 4) on February 11, 2008, management
made false statements about Complainant, alleging he was trying to hit
his supervisor while driving a government van; 5) on February 15, 2007,
management gave complainant a letter of counseling; 6) on February 4,
or 11, 2007, management called Complainant on his personal phone; and 7)
on December 12, 2006, the Chief of Health Administrative Services made
inappropriate and unprofessional comments in the presence of Complainant,
including alleged comments such as calling another employee a "monkey"
and that she would "slap the black off” an employee.
The Agency issued a letter of partial acceptance and partial dismissal on
September 19, 2008, in which it dismissed two of Complainant’s claims
for untimely EEO Counselor contact. Those claims were that on October
30, 2007, the Agency changed Complainant’s grade and pay, and that on
February 15, 2007, Complainant received a letter of counseling.1
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
requested a hearing.
The AJ initially assigned to the hearing request issued an Acknowledgment
and Order to the parties, including Complainant and his designated
attorney representative, on March 13, 2009. The parties commenced the
discovery process. The Agency served its written discovery requests,
including interrogatories, requests for admissions and requests
for production of documents, on Complainant and his representative.
Complainant did not respond to the Agency’s discovery requests in any
form. The hearing was transferred to a different Commission office and AJ
on April 1, 2009. On May 19, 2009, the Agency filed a Motion to Compel
with the AJ. On June 18, 2009, the Agency filed a Motion to Dismiss,
Or, In the Alternative For Sanctions Against Complainant with the AJ.
Complainant did not respond to either Motion by the Agency. On February
9, 2011, the AJ issued an Order of Dismissal of Hearing Request, in which
she sanctioned Complainant for his failure to respond to the Agency’s
discovery requests, its follow-up letter, or its Motions to Compel and to
Dismiss. The AJ remanded the complaint to the Agency for a decision on
the merits of Complainant’s complaint based on the record as it stood.
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 discrimination as alleged. In its final agency decision,
the Agency found that Complainant had failed to show that he had been
subjected to harassment as he had not established that the Agency’s
actions were severe or pervasive, or that there were “unwelcome
personal slurs or other denigrating or insulting verbal or physical
conduct directed at him personally.” It also found that he had not
established that he had been discriminated against with respect to the May
29, 2008 reprimand, as it concluded that he had not shown the Agency’s
legitimate, nondiscriminatory reasons to be pretext for discrimination.
CONTENTIONS ON APPEAL
In his statement in support of his appeal, Complainant argued that the
AJ should not have issued a sanction against him based on his lack of
response to the Agency’s discovery requests. Complainant argued that
the AJ had not issued a Notice to Show Cause Order putting Complainant on
notice that a dismissal of his hearing request was a potential sanction.
He argued that the Commission should remand the case to the AJ for a
hearing to be held. Complainant did not address the findings in the
Agency’s final decision.
In its brief in opposition to Complainant’s appeal, the Agency argued
that Complainant had not complied with the AJ’s Acknowledgement and
Order, issued at the start of the hearing process, and had not responded
in any way to its discovery requests. Under the broad discretion given
to AJ’s to conduct hearings, the Agency argued that the AJ’s actions
were appropriate and should be affirmed. It also noted that Complainant
did not offer any argument on appeal as to its findings on the merits
of his complaint, and urged the Commission to affirm its decision.
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 Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chap. 9, § VI.A. (Nov. 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”).
ANALYSIS AND FINDINGS
Sanction
The Commission's regulations afford broad authority for the conduct of
hearings by Administrative Judges. See 29 C.F.R. § 1614.109 et seq.;
Rountree v. Dep’t of Treasury, EEOC Appeal No. 07A00015 (July 17, 2001).
When a complainant or agency fails to comply with an AJ's order, an AJ
may take action against the noncomplying party pursuant to 29 C.F.R. §
1614.109(f)(3), up to and including issuing a decision in favor of the
opposing party. See 29 C.F.R. § 1614.109(f)(3)(iv). Sanctions must be
tailored in each case to appropriately address the underlying conduct
of the party being sanctioned. See Hale v. Dep’t of Justice, EEOC
Appeal No. 01A03341 (Dec. 8, 2000). A sanction may be used to deter
the noncomplying party from similar conduct in the future, as well as
to equitably remedy the opposing party. Id.
Specifically, our regulations provide that where a party, inter alia,
fails to respond to an order of an AJ, the AJ may, as appropriate,
take action against the non-complying party pursuant to 29 C.F.R. §
1614.109(f)(3), i.e., an AJ may: (1) draw an adverse inference
that the requested information would have reflected unfavorably on
the non-complying party; (2) consider the requested information to
be established in favor of the opposing party; (3) exclude other
evidence offered by the non-complying party; (4) issue a decision
fully or partially in favor of the opposing party; or (5) take other
action deemed appropriate, e.g., payment of costs and expenses by the
non-complying party. Id. An AJ must first issue a Notice to Show Cause
to the non-complying party. EEO MD-110, Chapter 7, Section III(D),
fn. 6; see DaCosta v. Dep’t of Education, EEOC Appeal No. 01995992
(Feb. 25, 2000).
We find that the AJ’s issuance of a sanction in the form of the
dismissal of Complainant’s hearing request was not an abuse of
discretion, and was narrowly tailored to the actions of Complainant.
Under our decision in Council v. Dep’t of Veterans Affairs, EEOC Appeal
No. 0120080321 (April 9, 2010), we note that we have previously found
that the notice given in the Acknowledgment and Order of the possibility
of sanctions may function as the equivalent of a Notice to Show Cause in
an instance such as this. We further note that Complainant did not offer
good cause in his appeal submission as to why he did not respond to the
Agency’s discovery requests, Motion to Compel, or Motion to Dismiss.
His silence on this point fairly raises the inference that he did not
actually have good cause. Therefore, Complainant has not shown that
the AJ’s action constituted an abuse of discretion.
Final agency decision
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 Construction
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. Texas Dep’t of
Community 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, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
We find that, assuming Complainant had established his prima facie
cases of race, sex and reprisal discrimination, the Agency has put forth
legitimate, nondiscriminatory reasons for its actions. On May 29, 2008,
Complainant was issued a Letter of Reprimand following a proposal to
suspend him on the charge of endangering the safety of an employee,
following an incident in which Complainant drove his van towards his
first-level supervisor. The Chief of Health Administrative Services
decided that the proposed seven-day suspension was too harsh, following
the reply to the proposal by Complainant and information gathered from
other witnesses. Complainant has not shown that the Agency issued
the Letter of reprimand for reasons other than what were cited in the
proposal to suspend and Letter of Reprimand, or that those reasons were
pretext for discrimination.
To establish a claim of harassment a complainant must show that: (1)
he or she belongs to a statutorily protected class; (2) he or she was
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on the complainant’s statutorily protected class; (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982).
Further, the incidents must have been "sufficiently severe or pervasive
to alter the conditions of [complainant's] employment and create an
abusive working environment." Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice
No. 915.002 at 6 (Mar. 8, 1994).
We find that Complainant has not established a claim of harassment based
on his race, sex, or prior EEO activity. Complainant has not shown
that the Agency’s actions were based on his race, sex, or previous EEO
activity. Although the comments alleged to have been made by the Chief
of Health Administrative Services were highly inappropriate, we note
that Complainant informed the EEO Investigator that he was withdrawing
that allegation, and he does not raise it on appeal. There is nothing
in the record to support a finding of harassment with respect to the
actions of the Agency delineated by Complainant in his complaint.
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 decision and its finding of 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 (Nov. 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
October 21, 2011
Date
1 We note that the record shows that Complainant appealed the
reclassification of his position to the Merit Systems Protection Board
(MSPB).
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0120112704
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112704