0120102897
12-21-2010
Jeffery A. Owens, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jeffery A. Owens,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102897
Hearing No. 490-2009-00177X
Agency No. 200L-0598-2009100457
DECISION
On June 25, 2010, Complainant filed an appeal from the Agency's June 17, 2010 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
Since November 13, 2007, Complainant worked as a Safety and Occupational Health Specialist at an Arkansas healthcare facility of the Agency. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of national origin (French) and disability (recovering alcoholic) when it subjected him to hostile work environment harassment and, effective November 10, 2008, terminated his employment. To support his harassment claim, Complainant alleged over one hundred incidents dating back to 2003, during the time when Complainant participated in a Compensated Work Therapy program with the Agency.
The Agency accepted Complainant's claims of harassment and termination for investigation. Specifically, as to harassment, the Agency accepted supporting discriminatory incidents regarding reprimands, derogatory and belittling comments, isolation from coworkers, denial of training, lies told to and about Complainant, withholding of requested work assistance, tampering with Complainant's work equipment, inappropriate break and duty hours, and disciplinary actions.
During the Agency investigation, Complainant's original Supervisor (S1) stated that Complainant was terminated because he abused equipment, told lies to his most-recent supervisor, and "shorted out a $200 starter." Further, S1 stated that he did not act as Complainant alleged in his harassment allegations. Complainant's second-level supervisor (S2) stated, "I recommended [Complainant] not be retained after his probationary period . . . due to repeated conduct issues, failure to follow instructions." S2 stated that Complainant received counseling and/or reprimands on August 20, 2008, September 4, 2008, September 24, 2009, and October 23, 2009.
An Assistant Chief in Human Resources (HR1) stated that the probationary period is an extension of the hiring process and an opportunity for both parties to determine if the employment relationship is suitable for them, and that termination during the probationary period was the appropriate action here. HR1 stated that Complainant received numerous warnings during his one year probationary period and failed to improve during such a crucial time. The most-recent supervisor corroborated the other managers' assertions. The Agency submitted written documentation to support its contentions.
At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation and a notice of his right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant timely requested a hearing. Without a hearing, the assigned AJ issued a decision finding no discrimination. Specifically, the Agency stated: "Complainant failed to meet his burden of establishing a prima facie case of national origin or disability discrimination" and failed to allege actions that rise to the level of a hostile work environment. The AJ found that the Agency had reason to dismiss Complainant during his probationary period. Subsequently, the Agency issued a final order adopting the AJ's finding of no discrimination. The instant appeal followed from Complainant.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 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").
First, we find that it was appropriate for the AJ to issue a decision without a hearing on this record. We find no genuine issue of material fact. See 29 C.F.R. � 1614.109(g).
Next, 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 U. S. 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 Dep't 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).
Here, we find that Complainant failed to rebut management's explanations for its actions. Management witnesses for the Agency indicated that Complainant consistently behaved poorly during his one year probationary period so his employment was terminated. We find there is insufficient evidence to conclude that the Agency actions alleged by Complainant were motivated by unlawful animus rather than the aforementioned reason articulated by the Agency. We conclude that Complainant failed to establish pretext.
Based on a thorough review of the record, we AFFIRM the final agency decision finding no discrimination.1
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
__December 21, 2010______
Date
1 For the purpose of this decision, we assume without finding that Complainant is an individual with a disability. See 29 C.F.R. � 1630.2(g).
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0120102897
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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