0120112783
10-17-2011
Reginald A. Petersen, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Reginald A. Petersen,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112783
Hearing No. 540-2010-00109X
Agency No. 200P-0345-2010100811
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. For the reasons set forth,
we AFFIRM the Agency’s decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was
employed as a File Clerk, GS-4, at the Agency’s Phoenix VA Regional
Office. Report of Investigation (ROI), at 1. Complainant sought
counseling and subsequently filed a formal complaint.
Complainant alleged discrimination on the bases of religion
(Christianity), race (AfricanAmerican), and disability when, on November
20, 2009, he received a notice of termination from his temporary position
as a File Clerk OS-4, effective December 4, 2009.1
At the conclusion of the investigation, Complainant received a copy
of the investigative report. The Agency informed Complainant of
his right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision from the Agency.
Complainant requested a hearing before an AJ.
On March 22, 2011, an Administrative Judge (AJ) issued a decision without
a hearing. The AJ found that there was no genuine issue of material fact
in dispute. The AJ concluded that, although Agency failed to present a
legitimate, nondiscriminatory reason for its actions, Complainant failed
to meet his burden of proving discrimination.
On April 4, 2011, the Agency issued a decision finding no discrimination.
The Agency fully implemented the AJ’s decision. Complainant now
appeals from that decision. We find that the AJ correctly defined the
issues in the complaint.
On appeal, Complainant contended that the AJ was unfair in his ruling
and decision because Complainant was taking prescribed medication during
this time for his left shoulder surgery. Complainant said that the
teleconference proceedings with the AJ, the Agency’s Attorney and
Complainant should not have taken place due to Complainant being under
the influence of prescribed medication. Complainant asserted that the
AJ ignored the Agency’s lack of forthcoming evidence into this trial.
Complainant’s Appeal, at 1.
In response to Complainant’s Appeal, the Agency argued that the AJ’s
decision includes a thorough recitation of the relevant facts as well
as a complete analysis of the controlling law. The Agency stated that
Complainant failed to meet his ultimate burden of demonstrating that his
religion, race or disability likely motivated the Agency to terminate
his employment. In conclusion, the Agency requested that the Commission
affirm the Agency’s final decision and dismiss the subject appeal.
Agency’s Response to Complainant’s Appeal, at 1- 4.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that, even if Complainant’s
contentions that he was taking prescribed medications during the
teleconference proceeding are true, Complainant has failed to show on
appeal why the AJ’s decision to issue summary judgment was incorrect.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after
the summary judgment procedure set forth in Rule 56 of the Federal Rules
of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal
and evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. In the
context of an administrative proceeding, an AJ may properly consider
summary judgment only upon a determination that the record has been
adequately developed for summary disposition. Upon review, we find that
the AJ properly issued a decision without a hearing because there is no
genuine issue of material fact.
In analyzing a disparate treatment claim under the Rehabilitation
Act, where the Agency denies that its decisions were motivated
by Complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman
v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999). Under this analysis, in order to establish
a prima facie case, Complainant must demonstrate that: (1) he is an
“individual with a disability”; (2) he is “qualified” for the
position held or desired; (3) he was subjected to an adverse employment
action; and (4) the circumstances surrounding the adverse action give
rise to an inference of discrimination. Lawson v. CSX Transp., Inc.,
245 F.3d 916 (7th Cir. 2001). The burden of production then shifts
to the Agency to articulate a legitimate, nondiscriminatory reason
for the adverse employment action. In order to satisfy his burden
of proof, Complainant must then demonstrate by a preponderance of the
evidence that the Agency's proffered reason is a pretext for disability
discrimination. Id. If the Agency is successful, the burden reverts back
to Complainant to demonstrate by a preponderance of the evidence that
the Agency's reasons were a pretext for discrimination. At all times,
Complainant retains the burden of persuasion, and it is his obligation
to show by a preponderance of the evidence that the Agency acted on
the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715-716 (1983).
Assuming arguendo that Complainant is an individual with a disability
under the Rehabilitation Act, and that he otherwise established a prima
facie of case on all alleged bases of discrimination, we find that the
Agency articulated legitimate, nondiscriminatory reasons for its actions.
Complainant has not met his burden of showing, by a preponderance of
the evidence, that the Agency's reasons are pretext for discriminatory
animus. Complainant stated that he suffers from epis cluster headaches
and high blood pressure. Complainant said that his high blood pressure
was diagnosed in 2000 while he was still in the military, but the
epis cluster headaches developed in November 2009 while working at the
Phoenix VA Regional Office. Complainant stated that his epis cluster
headache was attributed to stress. When asked if management was aware
of his disability, Complainant stated that he informed the Triage Coach
about his medical condition. When asked what major life activities were
substantially limited because of his disability, Complainant stated none.
Complainant asserted that his medical condition did not affect his work
performance. Complainant acknowledged that he used several medications
for his high blood pressure and cluster headaches. Complainant denied
using any assistive device for his condition. Complainant stated
that the only accommodation (verbal) he requested for his condition
was to have additional help in the mailroom due to staffing shortage.
Complainant claimed that his stress had increased due to the lack of
personnel in the mailroom to assist with the workload. ROI, Affidavit
B-1. Assuming, however, that the Agency knew of Complainant’s claimed
disability, there is nothing in the record to indicate it had any part
in the termination at issue.
At all times, the ultimate burden of persuasion remains with Complainant
to demonstrate by a preponderance of the evidence that the Agency’s
reason were not the real reasons, and that the Agency acted on the basis
of discriminatory animus. Complainant has failed to carry this burden.
The Agency articulated legitimate, nondiscriminatory reasons for
terminating Complainant from the temporary File Clerk position before
his term appointment had expired. The Assistant Veterans Service
Center Manager (Manager) stated that Complainant was hired under a
term appointment. The Manager added that a term appointment does not
guarantee that the employee will retain the job, for which he was hired
since it is a temporary position with a specific timeframe. Regarding
the circumstances surrounding Complainant’s termination, the Manager
explained that Complainant informed management that employee A made a
threat that he was going to bring a weapon to work. The Manager stated
that, at the time, management believed it was a serious threat and decided
to conduct a fact-finding investigation to determine what happened.
The Manager claimed that the Director was briefed of the event and the
Director appointed a fact-finding panel. The Manager asserted that the
panel conducted an investigation and provided him with the results.
The Manager said that the result of the investigation pointed to the
fact that Complainant and employee B were both responsible for taunting
the employee, who made the threat which led to employee A’s conduct.
ROI, Affidavit B-6.
The Manager further explained that, during the fact-finding investigation,
Complainant offered a statement and according to the Human Resources
Official, he was asked to read and sign his statement, but Complainant
refused. The Manager added that Complainant wanted to change his
statement; however, the Human Resources Official advised him to submit
another statement because he could not change his first statement he
submitted for the record. The Manager further indicated that it was his
understanding that Complainant also refused to submit a second statement.
Therefore, the Manager determined that Complainant’s character was not
suitable for further employment as a term employee. Consequently, the
Manager recommended that Complainant be terminated, which was submitted as
a recommendation to the Director and was sustained. ROI, Affidavit B-6.
The Manager was asked if Complainant had received any counseling
about his conduct prior to his termination. The Manager replied that
he did not know because nothing was mentioned in the fact-finding
investigation. When the Manager was asked if there were any other
alternatives considered prior to terminating Complainant’s employment,
he added no because Complainant was functioning in the job for which
he was hired. The Manager went on to clarify, that Complainant was
a temporary employee, which would not have been extended beyond his
appointment unless Complainant had applied for a different position.
The Manager claimed that Complainant’s behavior was undesirable and
the Agency made a decision to terminate his employment since there was
no further employment guarantee beyond his term. When asked if the
other employees involved in the threat received any disciplinary action,
the Manager stated that employee A was terminated, but employee B was
disciplined since he was a permanent employee. ROI, Affidavit B-6.
The Manager denied that Complainant’s termination was based on
his race, religion, and/or disability. The Manager articulated that
Complainant’s termination was only based on the factfinding and his
conduct. The Manager also denied that Complainant was discriminated
against due to his religion, race, and/or disability when he recommended
his termination. ROI, Affidavit B-6.
The Commission finds that Complainant failed to rebut the Agency’s
articulated legitimate, nondiscriminatory reasons for its actions.
Furthermore, Complainant failed to show that the Agency’s action was
motivated by discrimination. Moreover, Complainant failed to show by a
preponderance of the evidence that he was subjected to discrimination
on the bases of religion, race, or disability. Furthermore, we find
that even if we assume Complainant was an individual with a disability
(a matter we do not decide in this decision), Complainant has failed to
show he was denied a reasonable accommodation.
CONCLUSION
The Agency’s 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
October 17, 2011
__________________
Date
1Complainant’s complaint also included five additional
harassment/hostile work environment issues and the basis of whistle blower
dated from October 22, 2009 and November 12, 2009. On March 19, 2010, the
Agency issued a decision dismissing the five additional harassment/hostile
work environment issues and the basis of whistle blower. There is no
indication in the record that Complainant challenged the dismissal of
the five additional issues or the basis of whistle blower with the AJ or
raised the matter in the instant appeal. Therefore, we will not address
these issues or the basis of whistle blower in this decision.
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0120112783
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013