0120101760
08-11-2010
Jessie D. Hudson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jessie D. Hudson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101760
Hearing No. 410-2009-00217X
Agency No. 200I-0508-2008103372
DECISION
On March 23, 2010, Complainant filed an appeal from the Agency's February 23, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Audiology Health Technician at the Agency's Atlanta Veterans Affairs Medical Center (VAMC) in Atlanta, Georgia. Telephonic Sworn Statement of Complainant at 7. During the relevant time, there were two Audiology Health Technicians and nine Audiologists working at the Atlanta VAMC. Telephonic Sworn Statement of Doctor B (Acting Chief for Audiology and Speech Department) at 17.
Complainant filed an EEO complaint dated July 24, 2008, which was subsequently amended, alleging that the Agency discriminated against him on the bases of race (Black), disability (depression and anxiety), and in reprisal for prior protected EEO activity when:
1. On June 11, 2008, Doctor A asked Complainant, while he was in his protected time, to remove wax from a patient's ears.
2. On August 14, 2008, Doctor A told Complainant to order tubing for hearing aids when the Complainant already had three patients to see.
3. On August 19, 2008, Complainant was given three of Doctor A's patients to serve.
4. On October 1, 2008, Doctor A added more patients to Complainant's schedule.
Complainant also alleged that he was subjected to a hostile work environment based on race (Black), disability (depression and anxiety), and in reprisal for prior protected EEO activity when:
5. On May 21, 2008, Doctor A questioned Complainant about refusing to see a patient while Complainant was in his protected time.
6. On June 11, 2008, Doctor A asked Complainant while he was in his protected time to remove wax from a patient's ears.
7. After Complainant started working in audiology Doctor A discredited his work performance.
8. Doctor A followed Complainant to his desk and stood over him and interrogated him.
9. Doctor A constantly interfered with Complainant's ability to concentrate and do his work.
10. Doctor A intimidated Complainant and the other African-American coworker in his unit.
11. On August 14, 2008, Doctor A told Complainant to order tubing for hearing aids when Complainant already had three patients to see.
12. On August 19, 2008, Complainant was given three of Doctor A's patients to serve.
13. On August 20, 2008, the Administrative Officer shouted at Complainant for bringing a patient to see him.
14. On October 1, 2008, Doctor A added more patients to Complainant's schedule.
15. On September 30, 2008, Doctor A asked for Complainant's leave information.
16. A coworker told Complainant that management was trying to treat the coworker like a "nigger."
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 timely requested a hearing and the AJ held a hearing on August 14, 2009. The AJ issued a decision on August 14, 2009, finding Complainant failed to prove that he was subjected to discrimination as alleged. The Agency subsequently issued a final order fully implementing the AJ's decision.
On appeal, Complainant contends that the AJ failed to consider all the information in the report of investigation. Complainant also claims the AJ lacked objectivity due to her familiarity with the Agency's attorneys.1
ANALYSIS AND FINDINGS
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, at � 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). She must generally establish a prima facie case by demonstrating that 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). 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. Dep't 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. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14, 1995).
After a careful review of the record, the Commission finds that the AJ's findings of fact are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Moreover, we determine there is no evidence that the AJ was biased, failed to consider the appropriate evidence, or engaged in improper ex parte communications with the Agency.
With regard to issues (1) - (4), we find the AJ properly found that the Agency set forth legitimate, non-discriminatory reasons for its actions. Specifically, the record reveals that the duties of Complainant's position as an Audiology Health Technician include removing wax from patients' ears, ordering tubing when directed to do so, and assisting patients who are in the office prior to doing other work. Complainant claimed that Doctor A interfered with his "protected time," which he described as time he was performing other job functions and time he was not seeing patients. While there was informal time that technicians were given to perform work that did not involve direct patient contact, the record reveals that there is no "protected time"when health technicians cannot be called to assist with patients as needed. Telephonic Sworn Statement of Doctor B (Acting Chief for Audiology and Speech Department) at 17; Telephonic Sworn Statement of Doctor C (Staff Audiologist) at 12-13; Hearing Transcript at 62. Moreover, the Agency noted that it is in Doctor A's discretion to ask audiology technicians to assist him since he is an audiologist and that all of the actions Complainant was asked to perform were part of his regular duties. Complainant failed to prove that the Agency's asserted reasons for its actions were a pretext for discrimination based on his race, disability, or in reprisal for prior protected activity.
With regard to Complainant's hostile work environment claim, we agree with the AJ that Complainant failed to show that he was subjected to a hostile work environment based on his race, disability, or in reprisal for prior protected activity. With regard to issue (5), Complainant claims Doctor A questioned him about his refusal to see a patient while on his "protected time." As discussed above, despite Complainant's contention to the contrary, the Agency has no policy that Audiology Health Technicians who are working on other duties are excluded from seeing patients when the need arises. We note that issues (6), (11), (12), and (14) were previously addressed under the disparate treatment analysis as issues (1), (2), (3), and (4) respectively and were found non-discriminatory. With regard to issues (7), (8), (9), (10), and (15) other than Complainant's bare assertions, he has present no evidence that Doctor A undertook these actions based on his race, disability, or in reprisal for prior protected activity.
With regard to issue (13), Complainant states that on August 20, 2008, the Administrative Officer shouted at him for bringing a patient to see him. Prior to this incident, Complainant had sent an electronic mail message to the Administrative Officer concerning patient issues. Telephonic Sworn Statement of Complainant at 47. Complainant states that in response to his electronic mail message, the Administrative Officer indicated that patient issues should be settled within the service line and expressed concern that Complainant was not handling the situation. Id. at 47. Complainant states that on August 20, 2008, a patient showed up in the office and Complainant did not have the solution the patient needed and he brought the patient to the Administrative Officer. Id. at 48. He claims the Administrative Officer yelled at him. The Administrative Officer stated that he had concerns with Complainant sending electronic mail messages to the Medical Center Director without giving the service a chance to fix things first. Telephonic Sworn Statement of Administrative Officer at 20. The Administrative Officer did not remember yelling at Complainant regarding this incident. Upon review of the record, we find Complainant did not show that the Administrative Officer's actions were based on his protected status.
With regard to issue (16), Complainant states that Coworker X, who is White, told Complainant that management was trying to treat the coworker like a "nigger." Coworker X did not testify at the hearing. During the investigation Coworker X denied making this statement. Telephonic Sworn Statement Coworker X at 18-19. We find Complainant failed to show that any of the alleged incidents of harassment were based on his race, disability, or in reprisal for prior protected activity.
CONCLUSION
Accordingly, the Agency's final order finding no discrimination is AFFIRMED.
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 11, 2010
__________________
Date
1 We note Complainant subsequently submitted a brief in support of his appeal bearing a postmark date of June 10, 2010. This brief was submitted beyond the applicable limitations period. As Complainant did not present adequate justification for the late submission we find that his untimely brief will not be considered in this appeal. However, even if the brief were considered it would not affect the outcome of this decision.
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0120101760
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101760