0120121553
03-07-2013
Rogers Butler, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Rogers Butler,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121553
Hearing No. 440-2011-00033X
Agency No. 200J-0537-2010102327
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 12, 2011 final order 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 relevant period, Complainant worked as a File Clerk at the Agency's Jesse Brown Veterans Affairs (VA) Medical Center in Chicago, Illinois.
On May 5, 2010, Complainant filed the instant formal EEO complaint alleging that he was subjected to harassment and a hostile work environment on the bases of age and in reprisal for prior EEO activity when:1
1. during 2001 and 2002, his requests to attend computer training classes were denied;
2. in 2007, he was overlooked for a promotion;
3. on March 17, 2009, his co-worker (CW) threatened him with scissors;
4. on March 17, 2009, CW did not allow him to work on the computer;
5. on April 1, 2009, his supervisor asked him to alter documents, but CW did not allow him to work on the computer;
6. on April 13, 2009, CW threatened to "spin" him;
7. on October 21, 2009, his co-workers and supervisor allowed CW to bully him;
8. on March 17, 2010, a supervisor did not allow him to deliver mail to the Director's office;
9. on March 18, 2010, a supervisor told him that the medical center would retaliate against him if he continues his EEO complaint;
10. on April 1, 2010, his co-workers raised their hand to their noses as if he "smelled;"
11. effective May 24, 2010, his supervisor reassigned him back to the Agency's Hines VA Hospital Files Room from the Jesse Brown File Room; and
12. on June 2, 2010 and July 1, 2010, he was issued Notice of Absence Without Leave (AWOL).2
Following the investigation into his formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On October 13, 2011, the AJ issued a decision by summary judgment in favor of the Agency.
The AJ based the decision on the evidence of record gathered during the investigation into Complainant's complaint. The investigative record established that Complainant was employed by the Agency for approximately ten years as a File Clerk, first at the Hines VA Medical Center, and then at Jesse Brown VA Medical Center.
The Medical Record Supervisor ("Supervisor 1"), was his first-level supervisor at Hines. The Supervisor of Patient Administration Services ("Supervisor 2") acted in Supervisor 1's place for a two-week period in October 2009. Supervisor 2 was also Complainant's first-level supervisor from October 29 to December 31, 2009, after Complainant transferred to Jesse Brown. After that, the Chief of Health Information Management Services ("Supervisor 3") became Complainant's supervisor. At Jesse Brown, Complainant also assisted the Program Specialist ("Supervisor 4") by delivering mail.
With regard to claim 1, the evidence showed that Complainant's request to attend computer training classes during the 2001-2002 time period was not denied. Specifically, during the relevant period, Complainant was taking training classes approximately two or three times a week. However, Supervisor 1 acknowledges that he was told Complainant that he should not go to training unless his regular duties were completed. While Complainant may have interpreted this as a denial of training, it appears he was permitted to go if his work was done.
Regarding claim 2, Supervisor 1 stated that Complainant and a named co-worker started on the same day as file clerks, but the co-worker got a job promotion. Supervisor 1 explained that the co-worker applied for a ward administrative clerk position and was selected. There is no evidence in the record indicating Complainant ever applied for this or any other promotion with the Agency.
Regarding claims 3 and 4, Complainant alleged that on March 17, 2009, a co-worker ("CW") would not let him work on the computer in the file room. The two got into a heated discussion. Complainant alleged that CW "told him where to go" and waved some scissors at him in a threatening manner. Complainant reported the incident to management in October 2009, who notified the Hines Police Service. The police interviewed Complainant, CW, Supervisor 1 and other witnesses, and decided not to take any further action. Regarding claim 5, Complainant stated that on April 1, 2009, Supervisor 1 asked him to revise a leave request, but CW again would not allow him to use the computer. Regarding claim 6, on April 13, 2007, Supervisor 1 stated that Complainant reported that CW threatened to "spin" him. Supervisor 1 said he asked other employees in the area about and no one could corroborate Complainant's story.
As a result of the continuing bad relations between Complainant and CW, Supervisor 1 decided to separate them by moving them to different work areas. Eventually, in October 2009, management moved Complainant to Jesse Brown at his request.
Regarding claim 8, once Complainant transferred to Jesse Brown, he assisted Supervisor 4 in delivering the mail. However, as of March 17, 2010, Supervisor 4 decided that he would no longer deliver mail to the Director's office because she said she had received a report that Complainant was flirting with staff in that office.
Regarding claim 9, Complainant asserted that he asked Supervisor 2 to help him prepare an EEO complaint concerning the harassment he experienced at Hines and alleges that Supervisor 2 warned him that he would be retaliated against. Supervisor 2 was a former union and EEO representative. Supervisor 2 supervised Complainant for a very short period (two weeks at Hines and two months at Jesse Brown) and did not make any of the challenged decisions.
The supervisor denied Complainant's allegation that he was told by the Program Specialist that the Medical Center would retaliate against him if he continued his EEO complaint.
Regarding claim 11, on May 25, 2010, Complainant was reassigned back to the Hines file room because of a large project that needed to be completed. Supervisor 3 made the decision to return Complainant to Hines.
Complainant refused the reassignment and stopped reporting for work because he claimed the work environment at Hines was hostile. Consequently, Complainant was charged with being AWOL (claim 12).
Based on these facts, the AJ found no discrimination, concluding Complainant did not establish a prima face case of age and/or reprisal discrimination. Moreover, the AJ found that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for the disputed actions which Complainant failed to show were a pretext. Regarding Complainant's harassment claim, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on age and retaliation, or that the alleged harassment was sufficiently severe or pervasive so as to create a hostile work environment.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed. Complainant, on appeal, argued that the AJ erred finding no discrimination. Complainant asserts that the AJ "may have been misled and sided with the VA. Something as potent and outstanding as [the EEO investigator's] attitude needs investigating. I was misled by the Honorable Administrative [AJ] she seems to doubt the hostile work environment."
Further, Complainant stated that on October 18, 2010, he was removed from Agency employment for failure to follow leave procedures. Complainant further argued that in his removal letter, the Agency claimed it was "because of insubordination, and then, they say subsequently discharged for AWOL. Which one is it? You tell me."
ANALYSIS AND FINDINGS
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. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. 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.
After careful review of the record and consideration of the arguments on appeal, we find that Complainant has not identified genuine issues of material fact in this case which can only be resolved through a hearing. As such, we find no basis for concluding that the AJ erred in deciding this case by summary judgment. The evidence gathered during the investigation fully supports the AJ's determination that Complainant did not establish a prima face case of age and/or reprisal discrimination. There is absolutely no evidence suggesting that Complainant's age played any role in these events. With regard to Complainant's reprisal claim, there is little evidence that the responsible management officials were aware of any prior protected activity. While Supervisor 2, a former union and EEO representative, is alleged to have warned Complainant about possible retaliation, he was not responsible for, or even involved in, any of the actions which form the bases of Complainant's complaint. Even if Complainant had established a prima facie case, the responsible Agency officials successfully rebutted any initial inference of discrimination by articulating legitimate, nondiscriminatory reasons for the disputed actions which Complainant failed to show were a pretext.
With regard to Complainant's harassment claim, we find ample support for the AJ's conclusion that Complainant failed to allege facts, even assuming they are true, that are of sufficient severity or pervasiveness to establish a hostile work environment. Moreover, there is no nexus has been established between the alleged harassment and Complainant's alleged bases of discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.
Finally, the Commission notes that Complainant, on appeal, raises a new claim that he was removed from Agency employment. We find that the new claim was not previously raised by Complainant and it is inappropriate for Complainant to raise it for the first time on appeal. Complainant is advised that if he wishes to pursue any additional claims for the first time on appeal, he should initiate contact with an EEO Counselor.
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
March 7, 2013
__________________
Date
1 For ease of reference, the Commission has re-numbered Complainant's claims as claims 1 - 12.
2 The record reflects that claim 12 was later amended to the instant complaint.
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Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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