0120112321
07-20-2012
Richard Mandlebaum, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Richard Mandlebaum,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112321
Agency No. 200H06202010100442
DECISION
On March 15, 2011, Complainant filed an appeal from the Agency's February 14, 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. 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 worked as a Physician at the Agency's Hudson Valley Community Based Outreach Clinic facility in Montrose, New York.
On February 8, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of religion (Jewish) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. In October of 2004, 2005, 2006, 2007 and 2008, Complainant was not converted to permanent status;
2. On January 9, 2009, Complainant was charged 15 minutes of leave;
3. On August 5, 2009, Complainant was only granted four hours of administrative leave instead of eight hours in order to prepare an appeal of a disciplinary action;
4. On July 25, 2009, Complainant was issued a proposed three-day suspension, which was reduced to a written counseling on October 15, 2009;
5. On September 21, 2009, Complainant was assigned an office which was inadequate in size and inappropriate for him to see patients in;
6. On November 21, 2009, Complainant was not converted to permanent status; and
7. On November 21, 2009, Complainant's temporary appointment was not renewed.
On April 6, 2010, the Agency issued a notice of partial acceptance of the issues, notifying Complainant that it was dismissing claims 1 through 31 for untimely EEO Counselor Contact and accepting the remaining claims for investigation. 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 (FAD) 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.
Specifically, the Agency found that it had articulated legitimate nondiscriminatory reasons for its actions with regard to claims 4, 6, and 7. With regard to claim 4, the Agency found that Complainant's first and second-level supervisors (S1: Christian; S2: no claimed religion) said that the discipline was issued because Complainant sent inappropriate emails out on four occasions, including once after being warned to stop. With regard to claims 6 and 7, S2, S1 and the Business Manager (BM: Roman Catholic) averred that due to a drop in the facility's workload and budget, staff had to be reduced and since Complainant was the only temporary hire he was let go. The Agency further found that Complainant failed to establish that the Agency's articulated reasons were pretextual. With regard to claim 5, the Agency found that Complainant failed to establish a prima facie case because the two comparators he identified were not similarly situated with him.
CONTENTIONS ON APPEAL
Complainant argues on appeal that a copy of an email sent by S2 to the Chief of Staff (CS: Catholic) shows that Agency officials lied when they cited fiscal reasons for not re-hiring him. Complainant further argues that by keeping him as a temporary employee for seven years, the Agency "violated their own protocol." With regard to claims 1, 2, and 3, Complainant argues that he submitted supporting documentation in a timely manner and that these claims should therefore not have been dismissed. Complainant next argues that the Agency defended its action not to renew Complainant's temporary status or make him permanent based on an Agency handbook that does not apply to Physicians and that "thereby the complainant's dismissal was not based upon supported facts or circumstances to remove him but by lying about the reasons for the dismissal." Complainant further argues "Like any other employee, the complainant should have automatically been converted first to the status of a career conditional employee and after three (3) years to permanent employment status." Complainant next states that his non-renewal should be analyzed under a disparate impact theory. Complainant also maintains that the Agency failed to articulate legitimate nondiscriminatory reasons for its actions. The Agency requests that we affirm the FAD.
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").
Dismissed Claims.
EEOC regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination must be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
The record shows that Complainant first contacted a Counselor on November 2, 2009. Therefore the actions alleged in claims 1, 2, and 3, which occurred in 2004, 2005, 2006, 2007, 2008, and in 2009 more than 45 days before November 2, 2009, are all untimely. Complainant argues on appeal that he timely submitted additional information in response to the Agency's request and that the dismissal is therefore improper. The issue, however, is not about the timeliness of any additional information Complainant submitted. Instead the issue is about when Complainant first contacted a Counselor. Complainant knew, or should have known in 2004, 2005, 2006, 2007, 2008 and 2009 that the issues that occurred in those years were discriminatory, yet he waited until November 2, 2009 before contacting a Counselor. Since he waited more than the 45-day regulatory limit, these claims were correctly dismissed as untimely.
With regard to claim 4, the Agency did not also dismiss this claim for untimely EEO Counselor contact, even though the events occurred on July 25, 2009, which is also more than 45 days before his Counselor contact. Since the Agency waived the issue of untimely Counselor contact on this claim, we shall not address it further in this decision.
Disparate Treatment
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). Complainant must initially 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 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. See Hicks, supra.
In order to establish a prima facie case, a complainant may show that he is a member of a protected class, that he was subjected to adverse treatment, and that he was treated differently than otherwise similarly situated employees outside of the protected class. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975).
With regard to claim 5, assuming that being assigned to a small office constitutes adverse treatment, we find that Complainant has not established a prima facie case because he has not shown that he was treated differently than non-Jewish employees who were otherwise similarly situated with him. We note that during the investigation, Complainant testified that the other, larger, offices were assigned to either nurses or full-time physicians, not part-time physicians such as himself. See Report Of Investigation (ROI), Affidavit B-1, pp. 49, 52-3. Since Complainant has not identified a non-Jewish part time physician who was treated differently than he was, he has failed to establish a prima facie case.
With regard to the remaining claims, the prima facie inquiry may be dispensed with since the Agency articulated legitimate nondiscriminatory reasons for its actions. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17 (1983). While Complainant argues on appeal that the Agency failed to articulate any such reasons, following a review of the record, we disagree. With regard to claim 4, S2 testified that the reason for the proposed three-days suspension was the following:
On March 19, 2009, [the Chief of the Agency's Information and Management System (CIMS: religion unknown)] reported an inappropriate e-mail was sent by [Complainant] to her and several other employees. On March 25, 2009, [Complainant] was verbally counseled by [S1] . . . to cease sending these e-malls. [S1] followed up with a verbal counseling, with an e-mail summary of the counseling, and he sent that e-mail on March 30, 2009. On March 30, 2009, . . . CIMS sent a follow-up e-mall complaining that [Complainant] continued to send inappropriate e-malls. Our records show that [Complainant] sent inappropriate e-mails on March 18th, March 25th, May 13th and June the 17th.
ROI, Affidavit B-2, pp. 21-2.
The burden thus returns to the complainant to demonstrate, by a preponderance of the evidence, that the agency's reason was pretextual, that is, it was not the true reason or the action was influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's Honor Center, 509 U.S. at 519. Complainant maintains that a few hours before S1 told him to stop sending inappropriate emails, Complainant had already sent one that S1 only found out about the following work day, causing S1 to wrongfully believe that Complainant had ignored his warning to stop. See ROI, Affidavit B-1, pp. 28-9. Complainant testified that a few months later he received additional joke emails that he was unable to open, and in trying to delete them, he accidentally forwarded them to three others, including S1. See id., pp. 29-30. Complainant maintains that S2 "jumped on the opportunity to propose a three-day suspension for forwarding jokes," but that Complainant grieved the matter and the suspension was subsequently reduced to a written counseling. Id.
Following a review of the record we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reason for its action is a pretext for discrimination. While Complainant maintains that he did not intentionally send inappropriate emails after being told to stop, the Agency's skepticism about his claim is not so unreasonable so as to conclude that discrimination against Complainant's religion was more likely than not the reason for the Agency's action. Nor has Complainant presented any other evidence that Agency officials harbored any animus towards his religion.
With regard to claims 6 and 7, various management officials all agreed that the reason Complainant was not converted to permanent status nor was his temporary appointment renewed was because, according to S2, "temporary appointments required justification for renewal. The primary care workload was dropping, and we could no longer support [Complainant's] position in light of a projected $3 million budget shortfall." ROI, Exhibit B-2, p. 35. S2 further testified that the facility had the capacity to care for several thousand more patients than there were seeking medical care. See id., p. 35. S2 further testified that Complainant "was one of the targeted individuals to not renew, because he is a temporary, part-time employee, and that's the reason they're temporary, and that's the reason they're part-time, so you can adjust, depending on what the needs of the institution is." Id., p. 36. CS, S1 and BM all concurred that Complainant's appointment was not renewed because of declining patient volume. See ROI, Exhibit B-3, p. 5; Exhibit B-4, pp. 23-4; Exhibit B-6, p. 28.
Complainant again fails to meet his burden of establishing that the Agency's articulated reason for its action is a pretext for discrimination. Complainant argues that, with regard to S2's testimony that Complainant's appointment was not renewed because he was a temporary, part time hire, Complainant testified he believed it was illegal for the Agency to keep him as a temporary employee for seven years and that "basically according to the federal government, anybody that [sic] the government after one or maybe two years has to either be let go or made permanent." ROI, Exhibit B-1, p. 58. Complainant, however, was not able to provide a copy of any such policy or regulation. Complainant on appeal submits a copy of an email that S2 sent to CS wherein S2 writes "I recommend that we do not renew [Complainant's] temporary appointment when it expires on November 21, 2009 and leave this proposed suspension open. [An Agency employee] will issue the non-renewal letter once you approve. We should do this as soon as possible." Complainant argues that the email makes no mention of budgetary reasons for his non-renewal. While Complainant is correct, we also note that the email makes no mention of anti-Jewish discrimination or retaliation. The email, in fact, merely shows that S2 did not want to renew Complainant's employment, but the email provides no insight into the reasons for such a decision.
Complainant states "This is obviously retaliation for not replying to [S2] instead going over his head to CS. I won this case, I was NOT SUSPENDED. I was not renewed out of a petty response to this fact by [S2]." (Capitals in original). We note, however, that retaliation for going over the head of a superior is not the type of retaliation covered by EEO regulations unless the underlying matter involves protected EEO activity. In order to establish a claim of reprisal, Complainant must show that: he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). Complainant, however, has not shown that he engaged in protected EEO activity. Specifically, he has not shown that when he contacted CS, he alleged that the three-day suspension was discriminatory, as opposed to merely being unjustified or unfair. Absent a showing that he raised the issue of discrimination when challenging his suspension, he cannot show that any action the Agency may have taken because of such challenge constitutes the type of retaliation covered by EEO regulations. We note in this regard that Complainant has not submitted a copy of the successful grievance he filed against his suspension to demonstrate whether or not he raised the issue of discrimination at the grievance.
Finally, to the extent that complainant is alleging that he was subjected to a hostile work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the FAD.
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
July 20, 2012
__________________
Date
1 The Agency numbers the claims differently.
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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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