0120123564
03-19-2013
Laurence Davis, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Laurence Davis,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120123564
Agency No. 200J-0506-2012100344
DECISION
Complainant filed an appeal from the Agency's September 10, 2012, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. 633(a). The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant (African American male, age 65) worked as a Housekeeping Aide at the Agency's VA Medical Center facility in Ann Arbor, Michigan. Complainant, a veteran, had been in the position for approximately 20 years and had no record of any prior disciplinary action or misconduct.
On December 2, 2011, Complainant filed an EEO complaint alleging that he was discriminated against on the bases of his race and age when Agency management disciplined Complainant, an older African American employee, but did not issue comparable discipline to the younger Caucasian female nurse who was involved in the same incident.
The Agency accepted the complaint for investigation. The investigative record shows that on June 23, 2011, Complainant's first-level supervisor ("Supervisor") (Caucasian male, age 41) issued him a notice of proposed removal from employment on the charge of "violent behavior in the workplace" for an incident that occurred on May 26, 2011. On September 30, 2011, the Director of the VA Medical Center ("Director") (Caucasian male, age 51) issued a final decision on the proposed removal, sustaining the charge, but mitigating the penalty to a one-day suspension. The stated reasons for reducing the penalty to a suspension was Complainant's "past service to the VA, his status as a Veteran, the lack of prior disciplinary action and his admission that his action was wrong and he had apologized to her." Complainant served the suspension on October 4, 2011. Both management officials indicated that they consulted with a Human Resources Specialist (Caucasian female, age 30) in making these disciplinary decisions.
On May 26, 2011, it is undisputed that a confrontation occurred between Complainant and a younger Caucasian female nurse. The record evidence shows that on May 26, Complainant found a five-dollar bill in a hallway where he was cleaning. Sometime later, Complainant entered the 5th Floor Post-Anesthesia Care Unit (PACU) and asked if anyone had dropped this money. A younger (under the age of 40) Caucasian nurse claimed the money was hers, but could not, in response to Complainant's question, say where she lost the money. The nurse asked Complainant where he had found it and Complainant responded, "I feel like you're just messing with me now." Complainant put the money back in his pocket. The nurse yelled, "I want my money." All of the witnesses averred, and the responsible management officials concede, that the nurse then approached Complainant and put her hand into his pocket to retrieve the money, but instead pulled out Complainant's keys. Complainant asked the nurse to, "please give my keys back," and then said, "I'm not kidding - give me my keys back." The nurse refused to give the keys back.
The record contains statements from several witnesses with varying recollections of what happened next. All the witnesses agreed that the nurse put her hand in Complainant's pocket, pulled out his keys and said she would not return them until he gave her the money. Witnesses agree that Complainant asked several times for his keys back. Complainant stated that he then "grabbed her hand," retrieved his keys, and left the PACU. Other witnesses did not see Complainant grabbing the nurse's hand. Still others said that Complainant "twisted" the nurse's arm until she gave him the keys. Witnesses then differed on what Complainant allegedly said when he left the PACU. Some heard nothing, one witness reported Complainant said "damn broad," and other witnesses stated that he said either, "give me back my keys or I will crush you," or just "I will crush you." Everyone agrees that as soon as Complainant had his keys, he left the PACU.
The record contains no statement from the nurse involved in the incident. In addition, the record shows that the nurse's supervisor was present during the incident. Complainant asked the supervisor to tell the nurse to give back his keys. The nurse's supervisor walked away, saying that she did not want to get involved. There is no statement from this supervisor in the record.
After Complainant had left the PACU, the VA Police Services were contacted by one of the witnesses. The record includes a police report, which confirmed that, on May 26, 2011, the police were called to respond to a "verbal argument." The report indicates that both Complainant and the nurse were considered as "suspects," and both declined to make verbal or written statements about the incident. After reviewing the witnesses' statements, the police did not press criminal charges against the nurse or Complainant.
The record also includes the affidavit of the Human Resources Specialist consulted by the management, who stated that, "the VA Ann Arbor Healthcare System has a zero tolerance for violence in the workplace." She added, "while this is not an automatic removal, the intent is that the Agency will take action against employees who violate this standard."
Complainant argues that, while he was disciplined for the May 26 incident, no action was taken by management against the nurse, who was the aggressor in the incident, including grabbing his keys out of his pocket. The record contains no evidence of any disciplinary action proposed or imposed on the nurse.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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency found that its management had articulated a legitimate, nondiscriminatory reason for proposing the removal, sustaining the charge, and imposing the one-day suspension. On the issue of pretext, the Agency decision found that "the documentary evidence is consistent with the statements of the management witnesses". The Agency reasoned that the evidence of record includes the VA Police Report, which "substantiates that the complainant in fact engaged in violence in the workplace by assaulting a nurse." The Agency found that Complainant had not established that his race or age was a factor, reasoning that "apart from his own assertions, the complainant offered no evidence of pretext".
The Agency also stated, "[o]ur finding . . . is not an endorsement of the removal decision in question, but merely reflects the limited focus of our inquiry. Title VII and the ADEA do not protect against unfair business decisions, but only against decisions motivated by unlawful animus. . . . the fact that one might think that the one-day suspension was carried out arbitrarily, does not in itself create Title VII or ADEA liability."
The decision concluded that Complainant failed to provide evidence or prove that the Agency subjected him to the discrimination as alleged.
This appeal followed.
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").
Neither party submitted a brief on appeal.
The issue before us is whether the record supports the Agency's finding that it did not discriminate against Complainant on the basis of his race or age when management proposed Complainant's removal for the May 26 incident, sustained the charge of violence in the workplace, and subjected Complainant to discipline, while not imposing similar discipline on the younger Caucasian comparator involved in the same incident. We find that this appeal includes within its scope the June 23, 2011 notice of proposed removal, the September 30, 2011 decision to sustain the charge, and the October 4, 2011 suspension.
Both Section 717 of Title VII and Section 633a of the ADEA specifically require that all personnel actions affecting federal employees "be made free from any discrimination." A claim of discriminatory disparate treatment may be examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail under this analysis, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. 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, Complainant bears the ultimate responsibility to persuade the fact finder, by a preponderance of the evidence, that a prohibited consideration was a factor in the adverse employment action. 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).
The responsible management officials assert they were enforcing the Agency's "zero tolerance" for workplace violence as the reason for the proposed removal and subsequently imposed suspension for this incident. While the witness statements varied, the managers indicated they relied on those statements which said that Complainant "twisted" the nurse's arm and said he would "crush" her.
Once the responsible management officials have proffered a legitimate, non-discriminatory reason for their actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that this was a pretext masking the fact that race and/or age played a role in this matter.
We find that Complainant has met this burden.
There is little dispute in this case concerning the facts of what occurred on May 26. The Agency's application of its "zero tolerance" policy would be legitimate, if warranted here, and consistently enforced in a non-discriminatory manner. However, the Agency does not provide any explanation for why the nurse, who was also involved in the incident, was not similarly disciplined when it is undisputed that she instigated the conflict, aggressively approached Complainant, and deliberately put her hand in Complainant's pocket and grabbed his keys. She refused to give them back to him despite his repeated requests. The record contains absolutely no evidence to support a finding that the nurse was disciplined at all for her role in the matter, much less in a similar manner.2 We recognize that the record shows that the female nurse worked for a different supervisor than Complainant. However, the Agency was clear that the zero tolerance policy applied to all employees. Without an explanation provided by the Agency for the differing treatment of Complainant and the nurse, we are left with the inference that the difference was the result of discriminatory factors.
We also note that the record provides very little support for the Agency's assertion that Complainant's behavior violated the "no tolerance" policy. First, the VA police were called and, after an investigation, found no basis to file criminal charges against either Complainant or the nurse. The record also contains absolutely no statement from the nurse herself indicating that she believed Complainant's actions amounted to "violence" towards her. Even more significant, the nurse's supervisor was present during the incident, and despite Complainant's request that she intervene, she did nothing, saying she did not want to get involved. The record also does not include any statement from this supervisor. Given the Agency's policy against workplace violence, this absence is telling. If the supervisor had been concerned that workplace violence was occurring, she would have been duty-bound under the Agency's policy to intervene.
Further, we are not persuaded by the Agency's argument that there can be no discrimination because it disciplined a younger Caucasian male employee in an unrelated incident for placing his hands on a coworker. Evidence of this asserted comparator lacks significance to the instant case because the Agency offered no explanation for the fact that there is no evidence the Caucasian younger nurse was issued a notice of removal or disciplined in any way for her role in instigating the conflict and for her aggression, including physically touching Complainant by putting her hand in his pocket and taking his keys.
For these reasons, we find that Complainant is entitled to a finding of discrimination on the basis of his race and age, and is entitled to full relief. Pursuant to Section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e. out of pocket expenses) and non-pecuniary losses (e.g. pain and suffering, mental anguish).
CONCLUSION
After a thorough review of the record, we REVERSE the final decision, based on the reasoning herein. We REMAND the matter for consideration of the appropriate relief.
ORDER
The Agency is ordered to take the following remedial actions:
1. Within thirty (30) days of receipt of the final decision, the Agency shall rescind the suspension imposed for the May 26, 2011 incident, and shall expunge from Complainant's personnel records any and all references related to this matter, including the proposed notice of removal, the final decision on that proposal, and the suspension, as well as the police report and any other investigative material.
2. Within 30 days of the receipt of the final decision, the Agency shall restore any pay lost as a result of the suspension, with interest, and/or any leave that was taken as a result of the suspension.
3. Within thirty (30) days of receipt of the final decision, the Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, if any, and shall afford him an opportunity to establish a causal relationship between the prohibited actions found to be unlawful and any pecuniary or non-pecuniary losses. The Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages, and shall provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages. 29 C.F.R� 1614.110. The supplemental investigation and issuance of the final decision shall be completed within sixty (60) calendar days of the date this decision becomes final. A copy of the final decision must be submitted to the Compliance Officer, as referenced below.
4. The Agency shall provide training to the management officials who were responsible for the discriminatory actions taken against Complainant concerning their responsibilities with respect to eliminating discrimination in the federal workplace.
5. The Agency will consider taking disciplinary action against the management officials who were responsible for the discriminatory actions taken against Complainant. The Agency shall report its decision to OFO in its Compliance Report and, if the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
6. The Agency shall post a notice in accordance with the paragraph below.
7. The Agency shall provide reasonable attorney's fees and costs, if appropriate.
8. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER
The Agency is order to post at its Ann Arbor, Michigan, VA facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 tends 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
March 19, 2013
__________________
Date
1 In her affidavit, the Human Resources Specialist stated that she believed the nurse was disciplined (without identifying the type of discipline). However, there is no evidence whatsoever in the record supporting this claim.
2 See note 1, supra.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120123564
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123564