0120113395
08-09-2013
Markus A. Overly, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Markus A. Overly,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113395
Agency No. 200P-0663-2010103393
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 9, 2011 final decision concerning an 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.
BACKGROUND
During the period at issue, Complainant worked as a Medical Administrative Assistant at the Agency's American Lake Division, Puget Sound VA Health Care System in Tacoma, Washington.
On September 1, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the basis of race (Caucasian) when:
a. on May 28, 2010, he received notice of his non-selection for the position of Human Resources Assistant, GS-6;
b. on June 4, 2010, he received notice that he did not meet the time-in-grade qualification for the position of Medical Administrative Assistant, GS-7; and
c. on September 30, 2010, his supervisor grabbed his arm during a heated discussion between them and she refused to let him exit the room.1
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on June 9, 2011, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of race discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding claim a, the Chief, Employee and Labor Relations (Chief) stated that he was the selecting official for the position of Human Resources Assistant, GS-6. The Chief stated that subject position was advertised during the November 2009 time period under a Merit System Announcement, and was only open to Human Resources internal candidates. The Chief stated that two candidates applied and were considered qualified for the subject position. The Chief stated that he chose a selectee but he later learned that the selectee turned down the offer. The Chief further stated that during the relevant period, the second candidate resigned from Agency employment.
The Chief stated that the Staffing section re-announced the subject position Agency wide as a GS-5/6/7 career ladder position. The Chief stated that after interviewing five candidates, including Complainant, he chose the selectee for the position because he was best qualified based on his experience working in Human Resources. Specifically, the Chief stated that the selectee worked in Personnel and Records "when he actually became a regular federal employee. But, I also knew him prior to the time as well, when he was... an agency temporary employee. And so, the advantage that he had in that position in Personnel and Records was several keys: One, he already knew the VISTA operating system that we use for keeping the records...he dealt with a myriad of benefit-type things, health benefits, life insurance benefits and so on. He was in a position to indoctrinate [n]ew employees when they have to initially do all the paperwork and sign all the new documents that new employees have to when they come on board."
The Chief stated that he did not select Complainant for the subject position "because he had not been in the Employee Labor Relations side of the house before, I believe that's why Staffing only found him qualified at the GS-5 level." Moreover, the Chief stated that Complainant's race was not a factor in his determination not to select him.
Regarding claim b, the record reflects that at that time Complainant had worked at the GS-5 level for seven years. The record further reflects that Complainant was notified that he was not qualified for the Medical Administrative Assistant GS-7 position because he did not meet the time-in-grade qualification for the subject position.
The Human Resource Assistant (HR Assistant) stated that the time Complainant applied for the Medical Administrative Assistant GS- 7 position, he was a GS-5. The HR Assistant stated that Complainant was qualified for reassignment at the GS-5 level but "he was not qualified for the GS-6 and/or 7." The HR Assistant further stated that while reviewing the candidates' applications, he noted Complainant's application "did not show that he was a GS-6 at that time, not did it show, and he did not even submit the SF-50 too that was requested to be submitted."
The HR Assistant stated that the Agency has time and grade requirements "meaning the people who were applying for a position have to serve 52 weeks of service within the pay grade that they are in now to be considered for promotion into the next higher grade of promotion."
With respect to Complainant's allegation that he was in a position which was a career ladder position at the GS-5 level for performance level GS-6 and that he should have been promoted much earlier, the HR Assistant stated that while an employee is in a career ladder position with a target grade at the higher level, promotions are not automatic. Specifically, the HR Assistant stated that to get a promotion to the next grade level depends on the employee's performance "throughout the year, and if he has done the performance of the job, and the recommendation from the service line."
Furthermore, the HR Assistant that the three candidates who were selected for the subject positions "all had 52 weeks, which equals out to one year of service, correct. All the individuals were at a GS-6 position.
The Chief stated that after management learned that Complainant was not promoted to the GS-6 level when he should have "we made that correction to his record. But, I also note even had [Complainant] been promoted to the GS-6 on time, he would not have met the one-year time-in-grade requirement to have been found qualified for that other GS-7 position that subsequently Staffing found him not qualified for."
Regarding claim c, Complainant's supervisor stated that on September 30, 2010, two of her supervisors were not at work and she had a "a long-term employee retiring. And so, on my way in that morning, rather than going directly to my office, I stopped at what we call in Building 81 the centralized check-in where we have a majority of our patients checking in and where we have a large majority of our staff. And at that time, I stopped there to touch base with staff just to make sure that they had - - we had appropriate coverage at the front line, that they had coverage for their breaks, et cetera, and also to make sure they knew. . . about the retirement party and that we had enough coverage so that everyone would have an opportunity to stop in."
The supervisor stated that while she was talking to the staff, she noted that Complainant "was acting inappropriately at the front line...he was noticeably upset. He was making faces, you know, slamming papers down. It was obvious he was upset." The supervisor stated that she walked over to Complainant and "just very quietly was telling him that I noticed his gestures toward - - you know he was making the gestures, I felt, toward me. It might not have been his intent, because he wouldn't speak to me when I came to the front line or acknowledge me in any way." The supervisor stated that she told Complainant "if I noticed his behavior, I knew that patients would notice his behavior. And I talked with my front line about this in the past, that they really set the tone for the date. We manage about 4,500 patients through the clinic in a month, and they can really set the tone for patient care for the individual clinics for the entire day."
Further, the supervisor stated that Complainant told her that it was not the time or place to speak to him, and "I just reiterated that he could not act like this at the front line. And then he stated to me that my behavior was unacceptable. So at that time, I asked him to step away from the front line and come with me, and he initially refused, and then I had to order him to step away and come with me. He followed me to Eligibility and I asked for a private room." The supervisor stated that when Complainant walked in the private room, he told her he was going to call the union to alert them of an illegal meeting and "I told him I would try also to locate the union and invite them over." The supervisor stated that neither one of them had success locating a union representative.
The supervisor acknowledged that as a supervisor "it's not inappropriate for me to pull an employee aside to talk with them about their behavior, you know, without arranging a meeting with a union member. However, I was trying to get the union there because [Complainant] wanted the union there, and I didn't have an issue with the union being there. But in the meantime, I just tried to reiterate to [Complainant] that our first goal at the front line was customer service and that he was more than aware of that. And that since he'd been in Health Plan Management, he's brought forward complaints and that we had taken him seriously. We'd followed up and we'd taken action. And the entire time I was speaking to him, he was shaking his head no, no. Then he started to talk about an email that he and I had had the day before."
The record reflects that Agency management was planning to have a town hall meeting with Health Plan Management and Complainant sent out emails stating that management need to have town hall meetings that all staff members could attend. The supervisor stated that she assured Complainant that all staff members would attend the meeting. The supervisor stated that when she sent the schedule for the town hall meeting out, Complainant became rude in his emails.
The supervisor stated that while they were discussing Complainant's behavior at the front line in the private room, Complainant brought up the email and "told me that my responses to him on email were out of line and unacceptable. And I said to him, you know, [Complainant], you need to reread your emails to me, you know, and just - - we've spoken before about his tone on email. So then he just became very loud...and he opened the door to leave. And at that time, I instructed [Complainant], you need to go home for the day. And he did not acknowledge me and he didn't respond to me. And so I said it again. And when I said it again, [Complainant], you need to go home for the day, I touched his forearm to try to get him to - - I think it's [a] common gesture to have someone look and acknowledge what you're saying to them. And as soon as I laid my hand on his forearm, he became really loud and yelling. 'You're grabbing at me. Don't ever touch me. This is a tort claim.' And he continued with stating that, and he was pointing his finger in my face and yelling at me. And so I continued to tell [Complainant] that he needed to go home for the day."
Furthermore, the supervisor stated that the Supervisor in Eligibility stepped in front of Complainant and "started backing him up, walking him out of the area in order for him to back away from me." The supervisor stated that she did not discriminate against Complainant based on his race.
The Supervisor in Eligibility (S1) stated that before the incident between the supervisor and Complainant happened, the supervisor asked S1 if she could use his break room because she wanted to have a private discussion with Complainant. S1 stated that he was sitting in his office and "I had my door open; and all of a sudden I heard [Complainant] shouting at [supervisor], telling her to get her hands off him. At that time, I exited my office, came back there; and he was in her face yelling at her. So I put myself between the two of them, separated them. I told them both to exit out of our area into the hallway."
Further, S1 stated that Complainant and the supervisor continued to yell at each other in the hallway. The Supervisor stated that while Complainant was telling the supervisor "you don't touch me; you need to keep your hands off me; I'm going to sue you," the supervisor "was basically telling him that he needed to calm down, you know, like, [Complainant], you need to calm down, to that effect." S1 stated that the supervisor "was handling it in a professional manner but she was upset. She was to the point she was in tears, from what I observed."
Complainant, on appeal, argues that the Agency erred finding no discrimination. For instance, Complainant argues that the Agency "is doing their best to make statements, or get employees to make statements to support their position(s) against me. The assault that happened has been 'minimized' to touching, when reality is that I was grabbed, restrained, and prevented to leave a room in which I requested to leave. I was the one who opened the door and wished to leave, so why didn't I leave? There's only one logical explanation and that's because I was being held against my will."
Further, Complainant states that the issue of his complaint "doesn't focus on the issue of temporary employees being converted to full time federal employees, and being allowed to compete for jobs without having to wait the 52 weeks like all regular employees have to do. Again, management is shifting the focus on other less important issues, or issues that don't have anything to do with the facts surrounding my complaint."
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 pretextual.
Complainant has provided no persuasive arguments indicating any improprieties 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.
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 9, 2013
__________________
Date
1 The record reflects that claim c was later amended to the instant formal complaint.
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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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