0120113959
02-14-2013
Timothy Landis, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Timothy Landis,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113959
Agency No. 2004-0512-2010100723
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 20, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Lead Vocational Rehabilitation Specialist (VRS), GS-1715-12, at the Agency's Veterans Affairs Maryland Health Care System (HCS) in Baltimore, Maryland.
On March 2, 2010, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected activity1 when:
1. On or around November 12, 2009, he received an overall rating of "Fully Satisfactory" on his October 1, 2008 to September 30, 2009 performance evaluation. Complainant was also rated "needs improvement" on eleven competency elements.
2. On December 1, 2009, his workstation was relocated from Building 15H to Building 1H, Room 203, with no explanation provided by management for the relocation.
3. Effective December 1, 2009, he was required to travel frequently between the former and new work site locations on a daily basis.
4. Effective December 1, 2009, his work area was not equipped with a telephone and he was required to use his personal cell phone for business contacts.
5. Effective December 1, 2009, his manager had a camera aimed at the door entry area of Complainant's office.
6. On December 1, 2009, his patients, the staff, and his community partners were informed Complainant would not return, due to disciplinary action.
7. On December 1, 2009, his computer profile was altered, his mail re-routed, and his office items were given to another employee;
8. On March 19, 2010, his assigned supervisory duties as the Acting Coordinator, Vocational Services, were removed and reassigned to another employee.
9. On June 14, 2010, management assigned him additional duties (i.e. a large caseload of approximately fifty clients) while his peers were not required to maintain a caseload due to administrative requirements.2
After the investigation, on September 17, 2010, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. Therefore, Complainant's case was forwarded to the Agency's unit ("OEDCA") responsible for issuing a final decision on the investigative record. After review, OEDCA concluded that the evidentiary record was inadequate. By letter dated April 20, 2011, OEDCA requested that a supplemental investigation be conducted. Complainant was notified of the supplemental investigation on or around April 28, 2011. The record indicates that OEDCA received the supplemental investigative report on June 28, 2011. The supplemental investigation contained statements from a number of witnesses, including Complainant, as well as a significant amount of documentary evidence.
On July 20, 2011, the Agency issued the instant final decision, finding no discrimination. In sum, the Agency found that that the responsible management officials articulated legitimate, nondiscriminatory reasons for the disputed actions which Complainant did not prove, by a preponderance of the evidence, were a pretext designed to mask unlawful retaliatory animus. Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The record also shows that in February 2011, while the matter was pending before the Agency's OEDCA for issuance of a final decision, Complainant filed an appeal with this Commission. That appeal was administratively closed as premature. Landis v. Department of Veterans Affairs, EEOC Appeal No. 0120111523.
After receipt of the Agency's July 20, 2011 final decision, Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant has only raised one issue on appeal. Through his attorney, Complainant, in essence, argues that because the Agency's final decision was not timely issued from when he received the original report of investigation and notice of rights, we should enter a finding of discrimination and remand the complaint for a hearing on remedies.
29 C.F.R. � 1614.110(b) requires an Agency, upon receipt of a request for an immediate final decision or the failure of Complainant to timely respond to the notice issued under � 1614.108(f), to issue its final decision within 60 calendar days of either receiving the request or the end of the time period for Complainant to send in his/her request. In this case, the notice of right to request a hearing or an immediate final decision was received by Complainant on September 17, 2010. Complainant failed to respond within the required 30-day time period. Therefore, the final decision should have been issued by the end of December 2010 in order to meet the 60-day deadline. However, the record shows that the final decision was not issued until July 20, 2011, seven months beyond the 60-day deadline.
Under certain circumstances, the Commission has sanctioned agencies for failure to adhere to the deadlines in 29 C.F.R. Part 1614. However, in this case, we find adequate justification for the Agency's delay. The record establishes that when the Agency initially reviewed the investigative report in order to draft its final decision, it found significant defects in the investigation which needed to be corrected in order to make a reasoned decision. Therefore, the Agency conducted a supplemental investigation in order to produce an adequately developed investigation. The record shows that Complainant was notified of the decision to conduct the supplemental investigation and submitted a statement during it. There is no indication in the record that Complainant ever lodged an objection to the supplemental investigation. The Agency issued its final decision within three weeks of completing the supplemental investigation. Under the facts of this case, we decline to sanction the Agency for its delay in issuing its final decision.
Disparate Treatment Claims
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:
The Clinical Manager (Manager) stated that he gave Complainant an overall rating of "fully successful" for the October 1, 2008 to September 30, 2009 performance evaluation. The Manager stated that the performance evaluation was based on Complainant's "declining level of performance." The Manager stated that during the relevant time he met with Complainant "on countless occasions, gave him individual supervision addressing my concerns with his performance and particularly his interaction with other staff."
The Manager stated that his major concern with Complainant was his "inability to demonstrate any insight to his behaviors, to my feedback, to the feedback of multiple, multiple other employees, some of them peers to [Complainant]. I could not get him through. The supervision was not able to successfully get him to understand his role, his behavior, his actions." Furthermore, the Manager stated that Complainant "would often challenge work assignments and different aspects of what we thought he should be doing."
The record reflects that starting in the fall of 2009, several employees shared their concerns about Complainant with management officials. The Manager stated that he and the Director of the Mental Health Clinical Center decided to temporarily move Complainant from Building 15H to Building 1H in response to Complainant's co-workers' concerns. Specifically, the Manager stated that Complainant's co-workers were "coming to me in fear of [Complainant], his behavior, his tone, and I believe they also quoted his acting out, what they describe as his creating a hostile work environment. So, we made a decision at that point to move [Complainant] out of that pending the investigation. There had to be some type of investigation for the safety of our other staff who were concerned about [Complainant's] volatility, concerned about his types of behavior that they were expressing to me." The Manager also stated that the co-workers complained that Complainant would leave the work area without notifying them, and this action made it difficult for them to arrange patient coverage.
The Manager acknowledged that the relocation required Complainant to walk from one building to another. Specifically, the Manager stated that Complainant "was required to travel back and forth from his office, yes, he was. It's a large campus. We all have to travel back and forth. And that's about a two-minute walk." The Manager further stated that Complainant's assigned work area was equipped with a computer and telephone but Complainant "chose not to use them. He chose not to get access."
With respect to Complainant's allegation that the Manager had a camera aimed at the door entry area of Complainant's office, the Manager denied it. Specifically, the Manager stated that Complainant's allegation is "absurd. What [Complainant] is referencing is money that we receive from headquarters for patient security, because this is a patient building. He is referencing cameras that were placed in the hallway four to five years prior to his arrival...they're there to monitor the building for patient and staff safety. They're not pointed at his office."
The Manager stated that during the relevant period, he did not make any inappropriate comments to Complainant's patients, staff members and his community partners about Complainant's performance or conduct. The Manager stated that he only made comments about Complainant in the context of constructive criticism." The Manager stated that his comments about Complainant were "never personal...this was always based on performance and attempts to get his performance to improve."
Complainant's asserted that on March 19, 2010, his assigned supervisory duties as the Acting Coordinator, Vocational Services, were removed and reassigned to another employee. The Manager denied this assertion. Specifically, the Manager stated that Complainant had never been an Acting Coordinator during the relevant period. The Manager stated that in 2004, his efforts "in terms of trying to elevate an employee, and in this case, [Complainant], into a succession model of management, was that I made him, not supervisor, because his PD is a lead vocational rehabilitation specialist. [However,] I gave him the ability to do the performance evaluations for the folks in the service. I subsequently found out back in 2004, because it only lasted about a month or so, that that was an error. [Complainant] would have had to have been, in his position description, supervisory vocational rehabilitation specialist. What I assigned him was not something that could be accomplished as a lead. That's the information that HR gave me. So I made an error at that time back then. That's the only time that I gave [Complainant] supervisory duties."
The Manager stated that he had been the Acting Coordinator until March 2010, when a named employee was assigned as the Acting Coordinator. The Manager stated at that time his duties had increased to the point he was overloaded.
Furthermore, the Manager stated that treating patients was Complainant's principal responsibility and that Complainant was only being assigned work in accordance with his position description. The record reflects that in June 2010, five cases were assigned to Complainant because they were incentive therapy cases and such cases were Complainant's area.
The Director of the Mental Health Clinical Center (Director) stated that the Manager informed him that he gave Complainant an overall rating of "fully successful" for the October 1, 2008 to September 30, 2009 performance evaluation. The Director stated that the Manager "felt that there were a number of things that [Complainant] was not performing at a high level within his role and that [Manager] felt that his performance was no better than fully successful."
The Director stated that tensions existed between Complainant and his co-workers because Complainant was a difficult employee with whom to work. The Director further stated that the workplace issues "are difficult to deal with because it is very clear that the other vocational specialists do not like or respect [Complainant] because they don't feel as though he has been a fair and equitable employee." The Director stated that after he and the Manager received complaints from Complainant's co-workers that had concerns and complaints about "interactions with [Complainant] and feeling that [Complainant's] presence was leading to a hostile work environment. So I made the decision, on a trial basis, to move [Complainant] from his office in 15H to Building 1H."
The Director stated that the two buildings are approximately "two to five minutes of each other. So it's not as though it's across campus." The Director further stated that there are security cameras in Building 1H because it is a residential program. The Director stated "I cannot say how exactly the cameras are aimed, but I have no reason to believe that they were aimed because of [Complainant]. Again, these are security cameras that we've had in there for some time."
With respect to Complainant's allegation that on March 19, 2010, his assigned supervisory duties as the Acting Coordinator, Vocational Services, were removed and reassigned to another employee, the Director stated it was "completely different than my understanding. As of my time as the director of the Mental Health Clinical Center, [Complainant] has never had direct supervisory authority. He doesn't do performance evaluations to my knowledge. [Manager], certainly in my mind, has always been the coordinator of Vocational Services." The Director stated that a named employee was later assigned as the Acting Coordinator.
Moreover, the Director stated that he still looks forward to working with Complainant and "there are still feelings that could be worked out. There's nothing really specific here. As I said, I think he brings some real strengths to the position, and hopefully we can build on those."
Complainant has failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful retaliation. While on appeal, Complainant challenges the reasons proffered by management witnesses for the disputed actions as inadequate to overcome any inference of retaliatory animus, we note that he bases his arguments on the original investigation and not the record as later supplemented.
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).
For the same reasons provided earlier in this decision, we conclude the record does not support a finding that the incidents alleged by Complainant as harassing occurred because of his prior protected activity.
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
February 14, 2013
__________________
Date
1 The record shows that Complainant had one pending EEO complaint on another matter at the time of the events at issue, filed in March 2009. He has also filed several previous EEO complaints that were closed in the 1990s.
2 The record reflects that claim 9 was later amended to the instant formal complaint.
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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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