0120113754
01-25-2013
Maurice Troop, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Maurice Troop,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113754
Agency No. 2003-0635-2010104120
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 10, 2011 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. � 621 et seq.
BACKGROUND
During the period at time, Complainant worked as a Chief of Environmental Service Management at the Agency's VA Medical Center in Oklahoma City, Oklahoma.
On October 7, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), age (57), and in reprisal for prior EEO activity1 when:
a. beginning April 14, 2010, the Associate VAMC Director (white female, age 44) reassigned him to the Library Service, pending an Administrative Investigative Board (AIB);
b. on April 14, 2010, he received a removal letter signed by the VAMC Director (white male, age 45) to be effective August 16, 2010;
c. although his removal was August 16, 2010, management did not retain him on the payroll through September 1, 2010, similar to the status of Assistant Chief, EMS;2 and
d. management subjected him to harassment/hostile work environment as evidenced by 27 events, dated 2009 through August 16, 2010.
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 10, 2011, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found no discrimination. Without addressing the prima facie analysis, the Agency found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, sex and age. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim a, the Associate VAMC Director (Associate Director) stated that Complainant was reassigned to the Library Service because of allegations of serious misconduct made by numerous employees against him. Specifically, the Associate Director stated that Complainant was informed he was being reassigned away from the unit were the complaints were being made because "there had been some serious allegations made against him, and until the point that we could validate whether those allegations were true or not, we believed it was in his best interest and the facility's best interest to separate him from his service, and so we asked that he be reassigned to library service." Management convened an Administrative Investigation Board (AIB) to investigate the charges. The record shows that at least fourteen employees had signed sworn statements asserting Complainant was creating a hostile working environment in his unit.
Regarding claim b, Complainant was provided with a letter of proposed removal on July 16, 2010, and received his final removal letter on August 14, 2010. Complainant was also provided with a clopy of the AIB investigative report, including all affidavits and statements. Management witnesses testified that Complainant was removed from employment because the AIB substantiated many of the charges against him, including inappropriate behavior, intimidating behavior, inappropriate language, and promoting a "let-it-break" attitude among his staff in order to dramatize the need for more resources.
The VAMC Director (Director) stated that while the Associate Director issued Complainant a proposed removal, he was the deciding official to remove Complainant from Agency employment "because there were a number of charges that were made against him that were substantiated, inappropriate conduct, and many, many, many charges of intimidating behavior, inappropriate language, inappropriate interactions with his staff, letting - - having kind of a "let-it-break" attitude throughout the Medical Center, and creating that culture within EMS, providing inaccurate information, and a number of charges related to that."
The Director further stated that at least fourteen employees came forward and signed sworn statements "related to the hostile work environment that [Complainant] had created within that service, and typically in these kind of situations, you won't have that many individuals coming out against their boss, and alleging an inappropriate and hostile environment." As an example, the Director pointed to an incident where Complainant used vulgar, profane and derogatory language when referring to the Associate Chief Nurse, in her presence and in front of others, as "that stupid bitch, fat cow, that bitch don't run EMS."
The Associate Director, in the proposed removal, listed fourteen charges of inappropriate conduct and providing inaccurate information that ranged "from he told an employee if he had trouble with his supervisor, he could 'whoop his ass.' That he would tell stories when the employees complained to him about their supervisor, he told stories that were threatening stuff about when [someone had] . . . talked badly about him once, he ran [a named employee] into a bank once and beat him up. That when he thought someone was lying on him, that he ripped his shirt and got in a fight with him, and made it look like self defense. He had vulgar and profane and derogatory language that he used about employees here. He regularly defamed and humiliated employees . . . he engaged in what the service referred to as 'let-it-break' policy, where he let the cleanliness of the facility denigrate in an attempt to demonstrate that he needed more staff. He put employees and patients at risk by not providing a clean and safe environment. He allowed abusive behavior from a subordinate employee."
Further, the Associate Director stated, "because of the egregiousness of his activities, his actions -- I think he violated the public trust when he did his policy of let-it-break. I think that put patients and employees at risk. I think it set the federal government in a poor light." The Associate Director stated that during the relevant time, management had lengthy discussions with the Human Resources office concerning the seriousness of Complainant's actions, and learned that Complainant had lied on his application about never being fired from a position, which was not true. The Associate Director stated that the fact that Complainant lied in his application about never being fired from a position "in and of itself is sufficient enough to remove him. He displayed grossly inappropriate behavior over and over and over again in the course of the year."
Regarding claim e, Complainant supported his claim of a discriminatory hostile work environment by highlighting several job-related actions taken by management in connection with the AIB investigation that led to his removal, as well as a number of occasions where Complainant asserted upper level management undercut his authority as a supervisor. The Director and the Associate Director denied subjecting Complainant to a hostile work environment. Regarding Complainant's allegation that on July 16, 2010, he was publicly humiliated when the Associate Director ordered VA Police and Security Service to escort him from the Director's office through the building to the parking garage, management explained that this occurred because Complainant had just been provided with the notice of proposed removal, and that it was consistent with Agency practice to have security present to escort an employee in such circumstances from the workplace. The Director stated that Complainant "was treated consistently with how others are treated. And certainly when the police do escort someone, they do it very discreetly, and try not to publicly humiliate."
The Associate Director stated that during the relevant period she met with Complainant on a regular basis and "he was not treated any differently than any other service chief who works for me." The Associate Director stated that it was her responsibility as a supervisor to listen to complaints from employees and "to investigate whether there was any validity to those complaints, because I have a responsibility to ensure that there is not a hostile work environment here, and what I was hearing about [Complainant] and [named employee] certainly constituted a hostile work environment."
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part 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).
In the instant case, we find that 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.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the record does not support a finding that the incidents alleged by Complainant occurred because of his race, sex and age. Accordingly, he has not established that he was subjected to a discriminatory hostile work environment.
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
January 25, 2013
__________________
Date
1 The Agency properly dismissed reprisal as a basis because it was based on his whistleblowing activities and not on an EEO activity under any statute enforced by the Commission.
2 The record reflects that in his affidavit, Complainant withdrew claim c. As such, this issue will not be addressed in the instant case.
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