0120100576
08-04-2011
Kurt R. Fulton, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kurt R. Fulton,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100576
Agency No. 200H-0646-2008103406
DECISION
On November 18, 2009, Complainant filed an appeal from the Agency's October 22, 2009, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for the position of Housekeeping Aid at the Agency's Pittsburgh Healthcare Center in Pittsburgh, Pennsylvania. The Agency posted a vacancy for the Housekeeping Aid, under Vacancy Announcement Number VAF 08-062-JJ. Complainant applied for this position and was found qualified and referred. There were 12 selectees for the position; however, Complainant was not one of those selected. The Agency later posted a second vacancy for the Housekeeping Aid, under Vacancy Announcement Number 08-305-TGL. Complainant was considered for the second position; however, he was not one of the 24 selectees chosen for the position.
Complainant filed an EEO complaint dated September 29, 2008, which was subsequently amended, alleging that the Agency discriminated against him on the bases of disability (Post Traumatic Stress Disorder) and in reprisal for prior protected EEO activity when:
1. In spring 2008, Complainant was not selected for the position of Housekeeping Aid, WG-3566-01, under Vacancy Action File 08-062-JJ at the Pittsburgh Healthcare Center.1
2. In December 2008, Complainant was not selected for the position of Housekeeping Aid as announced under Vacancy Action File 08-305-TLG at the Pittsburgh Healthcare Center.
3. On January 8, 2007, Complainant was not selected for the position of Housekeeping Aid as announced under Vacancy Announcement Number 208-06 at the Philadelphia VAMC.
4. In 2006, Complainant was not selected for the position of Housekeeping Aid as announced under an unspecified Vacancy Announcement Number at the Bronx VAMC.
5. On February 17, 2005, Complainant was not selected for the position of Housekeeping Aid, WG-2, as announced under vacancy announcement number 175-04 at the Philadelphia VAMC.
6. On May 16, 2005, Complainant was not selected for the position of Housekeeping Aid as announced under vacancy announcement number 96-05 at the Philadelphia VAMC.
7. On February 5, 2004, Complainant was not selected for the position of Housekeeping Aid, WG-3556-02, as announced under Vacancy Announcement Number 4-04 at the Philadelphia VAMC.
8. On September 30, 2004, Complainant was not selected for the position of Housekeeping Aid, WG-3566-2, as announced under Vacancy Announcement Number 142-04 at the Philadelphia VAMC.
9. In 2003, Complainant was not selected for the position of Housekeeping Aid as announced under an unspecified Vacancy Announcement Number at the Philadelphia VAMC.
The Agency accepted issues (1) and (2) for processing. The Agency dismissed issues (3) - (9) because they were not discussed with the EEO Counselor and were not like or related to the claim which was discussed with the EEO Counselor. Specifically, the Agency noted that the claim Complainant originally raised with the EEO Counselor pertained to his non-selection in May 2008 for a Housekeeping Aid position at the VA Medical Center in Pittsburgh Pennsylvania. The Agency stated that Complainant failed to raise with an EEO Counselor his claims surrounding his non-selection for Housekeeping Aid positions at the VA Medical Centers in Philadelphia, Pennsylvania and Bronx, New York. The Agency noted that these non-selections occurred between 2003 and 2007. The Agency determined the "new" claims occurred prior to Complainant's non-selection at the Pittsburgh VA Medical Center in 2008 and the allegations would not have "grown out of the original complaint" which occurred at the Pittsburgh VAMC.
At the conclusion of the investigation on the accepted issues, 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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
In its final decision, the Agency found Complainant failed to establish a prima facie case of reprisal as to the first non-selection, VAF 08-062-JJ. The Agency noted there is no evidence of any prior EEO activity prior to Complainant contacting an EEO Counselor over the first non-selection. The Agency determined Complainant established a prima facie case of reprisal as to the second non-selection, VAF 08-305-TLG.
With regard to his claim of disability discrimination, the Agency stated that Complainant failed to establish a prima facie case of disability discrimination as to either non-selection. The Agency noted that the record established that Complainant suffered from Post-Traumatic Stress Disorder (PTSD) and that Complainant's testimony suffices to establish his PTSD constitutes a disability for purposes of the Rehabilitation Act. However, the Agency noted that all of the officials involved in the selection actions in dispute testified that they were not aware that the Complainant had a disability.
Assuming Complainant established a prima facie case of disability and reprisal discrimination, the Agency noted that management officials stated that Complainant had been a poor performer in the Compensated Work Therapy (CWT) Program and had been involved in at least one altercation with a supervisor and the police. With regard to issue (1), the Selecting Official (SO 1) noted that Complainant was not performing up to the full standards of a good employee while he was in the CWT Program. SO 1 stated that Complainant hated taking direction and did not like people telling him what to do. The Selecting Official for the second position (SO 2) stated that he believed the reason Complainant was not recommended to him for selection was due to an altercation where Complainant had yelled at a Housekeeping Supervisor X and ended up being placed in handcuffs by the VA police. Additionally, management noted that while employed in the CWT Program, Complainant was found to have been leaving work half an hour early and became very angry when supervisors attempted to stop him from leaving early. The Agency noted that the police became involved and this incident led to Complainant being discharged from the CWT program. The Agency stated that other applicants did not pose the behavior and conduct problems that Complainant did. Thus, the Agency stated it has articulated a legitimate and nondiscriminatory reason for the choices made which Complainant failed to show was a pretext for prohibited discrimination.
On appeal, Complainant stated he understands the Agency's position in citing the law, by comparing precedent cases and evaluating the validity of interviews that were conducted by the assigned Investigator, but he stated he was in disagreement with this decision. Complainant also stated that it appears the investigation that was conducted was not an adequate investigation, especially the interview of SO 1 and other Human Resource Personnel, including the Head Supervisor of the Environmental Management Service (EMS).
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").
Upon review, we find the record in the present case was adequately developed. Additionally, we note Complainant does not challenge the Agency's dismissal of issues (3) through (9) and we find no basis to disturb the Agency's dismissal of these issues.
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 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. 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).
In the present case, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to issues (1) and (2), the Agency stated that Complainant was not selected because of his poor performance in the CWT Program and due to his involvement in an altercation with a supervisor and the police while he was in the CWT Program. Complainant has failed to show by a preponderance of evidence that the Agency's articulated reasons for its actions were a pretext for discrimination.
CONCLUSION
Accordingly, the Agency's final decision 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
8/4/11
__________________
Date
1 While Complainant stated in his formal complaint that he was notified of his non-selection on May 28, 2008, we note that the record contains a letter dated July 5, 2008, informing Complainant of his non-selection. In an affidavit submitted during a supplemental investigation of his complaint, Complainant stated that the May 28, 2008 date may be incorrect; however, he stated that he was never provided any official notification.
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01-2010-0576
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100576