0120131180
06-05-2013
Kelvin D. Hayden, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kelvin D. Hayden,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120131180
Agency No. 200J-0556-2010104669
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 21, 2013 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Housekeeping Aide at the Agency's Veterans Affairs Medical Center in North Chicago, Illinois.
On October 19, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him in reprisal for prior EEO activity when:
1. on September 30, 2010, management denied him the opportunity to work overtime;
2. on December 5, 2010, management "threatened" him with loitering;
3. on December 10, 2010, he learned that his paycheck was short due to his supervisor intentionally submitting the paperwork in an untimely manner; and
4. on December 13, 2010 and January 7, 2011, management charged him with 16 hours of Absence Without Leave (AWOL).1
After the investigation of the instant formal complaint, 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. By an Order entitled "Order of Dismissal," the AJ cancelled the hearing request on the grounds that Complainant failed to follow the orders of the AJ and to prosecute his case. The record further reflects that the AJ remanded the formal complaint to the Agency, and the Agency issued the instant final decision pursuant to 29 C.F.R. � 1614.110(b).
In its February 21, 2013 final decision, the Agency found no discrimination. Without addressing the prima facie case analysis, the Agency found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding claim 1, the Chief, Environmental Care stated that he notified the afternoon shift supervisors and Team Leaders that he would need at least five employees to volunteer for overtime during the day shift on September 30, 2010., in order "to prepare the new FHCC." The Chief stated that on September 29, 2010, he contacted Complainant to offer him the opportunity to work overtime on the following day, September 30, 2010.
Further, the Chief stated "on the morning of the 30th [of September], I noticed only two people from the PM shift standing in the hallway outside of my office, [a named employee (E1)] and [Complainant]. [E1] checked in with me and stated that he was here for overtime. I asked if he knew how many others were coming and he stated that he didn't know. I asked [E1] to give me a minute and I would take him and the others over to the new building. When I locked my door and proceeded to the new building I stated to [Complainant]: 'Are you ready to work?' [Complainant] looked at me and stated: 'I'm not working today.' I looked at [E1] and didn't pursue anything else with [Complainant]. On that day, [E1] was the only person from the PM shift that worked overtime."
Regarding claim 2, the Chief stated that he had a conversation with Complainant about his concerns how Complainant used his time when he arrived to work early. Specifically, the Chief stated that he received complaints from the Director's office about Complainant demanding to speak with the Director before attempting to resolve his various concerns with his supervisor. The Chief stated that during the relevant time, Complainant's shift starts at 3:30 p.m. but "due to transportation reasons, [Complainant] arrives back at the VA between 6:30am and 7:00am. He then waits and visits with friends throughout the day until his shift begins at 3:00pm." The Chief stated that he informed Complainant that the Director's Office "had complained because you were going directly to them wanting to see the director, and then became argumentative when they informed you to see your supervisors first."
The Chief also stated that he told Complainant that he had concerns with Complainant "carrying on extended conversations with housekeeping staff when they were supposed to be working. I had issues with getting calls from staff stating that a housekeeper has been sitting idle at a particular building instead of working. When I checked on the report I see that it is you. You're being idle in one spot and being seen in smoking areas for extended periods of time gives the impression to the staff that housekeepers are not being held accountable for working their hours. Staff members don't know that you are on the PM shift, all they see is a housekeeper in uniform not working and being in lounge areas for extended periods of time."
Furthermore, the Chief stated that Complainant "then went into a litany . . . 'I'm a veteran; are you refusing to allow me access to the VA?; are you saying that as a patient I can't be here at the VA?....I made sure to let [Complainant] know that those were his words and not mine. What I did tell him is that he makes good points, but make sure he watches who he makes his points with. I told him I don't mind, but the last housekeeper who made the same argument with the VA Police was charged with Loitering and it was upheld when he went to court."
Regarding claim 3, Complainant alleged that the insufficiency of funds in his paycheck was discriminatory because management knew of his advanced leave request and should have acted appropriately by ensuring that his paycheck reflected that he had advanced sick leave. The record contains a copy of an investigator's memorandum dated April 7, 2011 concerning Complainant's paycheck being short on December 10, 2010. Therein, the investigator found that Complainant's paycheck was short "due to an error made by the timekeeper, the complainant indicated that management had sufficient advance notice of his ASL and should have prevented the error."
Regarding claim 4, the record reflects that Agency management submitted Complainant's time cards for December 13, 2010 and January 7, 2011. The record further reflects although the "prior data" on Complainant's time card for December 13, 2010 showed that he was initially charged with AWOL, the corrected data showed he was subsequently provided advanced sick leave for his absence.
The record reflects that in his memorandum, the investigator noted that in regard to Complainant's time card for December 13, 2010, "once [management] were made aware, ASL was approved, [Complainant] was appropriately provided ASL once Payroll was notified by HR that the ASL had been extended through a second request. The complainant indicated th[at] he was charged AWOL on December 13. He telephoned [Housekeeping Supervisor] on December 13 and was told by [Housekeeping Supervisor] that he would be charged AWOL because he did have the leave to cover his absence. He was informed by [Housekeeping Supervisor] that the decision was based on guidance from [Supervisor]. [Complainant] received an email from [Housekeeping Supervisor] the next day which stated that he was charged with AWOL. His AWOL was rescinded and he was compensated the day."
Further, the investigator noted that once Complainant informed management what occurred on January 7, 2011 when he did not show up to work, "he was allowed to take Annual leave and was not charged AWOL, the complainant indicated that he was charged AWOL. His AWOL was rescinded and he was compensated for the day."
Complainant, on appeal, requests that the Commission reverse the Agency's final decision finding no discrimination. Complainant claims that the Agency sent the decision to the wrong address. In response, the Agency requests that the Commission affirm its decision.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Complainant, on appeal, has provided no persuasive arguments indicating any error in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.2
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
June 5, 2013
__________________
Date
1 The record reflects that claims 2 - 4 were later amended to the instant complaint.
2 On appeal, Complainant does not challenge the December 22, 2010 partial dismissal issued by the agency regarding five other claims (that he was discriminated against on the basis of reprisal for prior EEO activity when from August 1, 2010 to September 22, 2010, a co-worker made comments to him regarding his work in the OR; a co-worker made a reference to employees with bad attendance and cautioned him to put food in his refrigerator, insinuating that he was one of those employees; named Agency official indicated that he was not doing his job properly in the OR; the Chief of Engineering Service forbade him from going up the chain of command without first coming to him; and the Chief told him that he was not qualified for certain positions but did not identify the positions). Therefore, we have not addressed these issues in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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