0120112256
09-28-2012
Thomas S. Lane, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Thomas S. Lane,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112256
Agency No. 200H06212010103175
DECISION
Complainant filed an appeal from the Agency's February 17, 2011 Final Decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. 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 Magnetic Resonance Imaging (MRI) Technician at the Agency's Veterans Affairs Medical Center facility in Mountain Home, Tennessee. Complainant filed an EEO complaint, dated June 21, 2010, alleging that the Agency discriminated against him on the bases of sex (male) and age (over 40) when:
A1. On April 20, 2010, Complainant was charged with eight hours Absence Without Leave ("AWOL");
A2. On June 23, 2010, Complainant's supervisor (S1) denied his request for use of annual leave for July 22 and 23, 2010; and
B. Complainant was harassed from February 2010 through June 23, 2010 including the following additional incidents:
1. On an unspecified date in February 2010, Complainant's supervisor, S2, denied Complainant scheduled breaks and got angry at Complainant for asking.
2. From an unspecified date through March 8, 2010, Complainant and other male technicians were scheduled to do 15 to 16 patients per shift, while female technicians were scheduled to 5 to 6 patients per shift.
3. On April 22, 2010, Complainant's supervisor, S1, told the male technicians to empty out their lockers and put their things in their cars, though female technicians have lockers.
By letter dated August 20, 2010, the Agency dismissed claims B1 and B2 insofar as these incidents were discrete personnel actions. The Agency found that Complainant presented these claims for EEO counseling on May 18, 2010, and that the incidents described as occurring in February and March 2010, were beyond the 45-day time limit for initiating the EEO process. The Agency dismissed these claims pursuant to 29 C.F.R. � 1614.107(a)(2). However, the Agency noted that as part of Complainant's overall claim of harassment, these claims would be considered together with the remaining timely claims of the complaint.
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). In accordance with Complainant's request, the Agency issued a Final Decision (Decision) pursuant to 29 C.F.R. � 1614.110(b).
In its Decision, the Agency found that the identified responsible management officials provided legitimate, non-discriminatory reasons for the Agency's actions that Complainant believed to be discriminatory, even assuming the incidents occurred as Complainant describes in his complaint. Specifically, the Agency found that when he contacted his supervisor, S1, that he had no sick leave available to use on April 20, 2010, and that he would be charged with AWOL if he did not report for work (claim (A1)). The Agency noted that both S1 and Complainant's second line supervisor, S2, deny that Complainant ever told them he had chronic health conditions and denied that they allowed female and younger employees to use annual leave in lieu of sick leave.
Regarding claim (A2), the Agency found that S1 denied Complainant's request for leave because another employee, E1, had previously requested leave on the same days and S1 stated that Complainant's leave request could not be granted.
With respect to claim (B) (overall claim of harassment), the Agency noted that in addition to the reasons given for the incidents described in claims (A1) and (A2), Complainant did not provide any persuasive evidence of pretext or that his sex or age were the real reasons behind the Agency's actions.
The Agency concluded that Complainant failed to establish that discrimination on any basis occurred as alleged in his complaint.
On appeal, Complainant states that the Agency's policy regarding leave in not consistently applied to male and female employees. Complainant also argues that male MRI technicians consistently perform more examinations than younger, female technicians.
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").
In the absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). For petitioner to prevail, he must first establish a prima facie case 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. Id. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the petitioner 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will 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 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, 510 U.S. 17 (1993).
The record shows that S1 became Complainant's supervisor in January 2010, which was only approximately three months before the AWOL at issue in claim (A1). S1 apparently applied leave rules more strictly than Complainant claims they were previously applied by a different supervisor. Complainant has not shown that S1 treated Complainant differently in any way then females or younger employees. We note that although Complainant states that E3, a female employee younger than Complainant, was allowed to use her annual leave after exhausting her sick leave, we find there is no evidence that S1 was the supervisor who may have allowed that to occur. Regarding the denial of leave in July 2010 (claim (A2)), we find that Complainant has not rebutted S1's legitimate, non-discriminatory reason to deny the request because the only other regularly scheduled Technician had requested leave first for those dates. Additionally, we find nothing in the evidence shows that S1 was responsible for the actual examination schedule; rather the evidence shows that circumstances beyond S1's control appeared to have impacted the number of examinations any given employee performed in the course of a scheduled shift. There is no persuasive evidence that Complainant was denied scheduled breaks. There is no persuasive evidence that any employees were treated differently about their lockers; rather, the evidence indicates that all similarly situated employees had to clean out their lockers (in anticipation of the arrival of new lockers) regardless of sex or age. Therefore, we find Complainant has not shown that he was subjected to harassment on the bases of sex or age.
CONCLUSION
The Commission AFFIRMS the Agency's Final Decision.
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
September 28, 2012
__________________
Date
2
0120112256
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112256