0120123233
01-18-2013
Weldon W. Woodward, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Weldon W. Woodward,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123233
Agency No. 200305892011102434
DECISION
On August 10, 2012, Complainant filed an appeal from the Agency's July 31, 2012, 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Health Technician at the Agency's VMAC facility in Kansas City, Missouri.
On June 25, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian and Native American) and reprisal for prior protected EEO activity when:
a. on March 21, 2011, Complainant's co-worker told Complainant, "we do not need you here;"
b. on March 23, 2011, Complainant's co-worker told Complainant not to talk to her;
c. on or about March 25, 2011, Complainant's supervisor assigned Complainant to work at the Warrensburg Community Based Outpatient Clinic (CBOC) although Complainant requested not to be assigned there;
d. on May 11, 2011, Complainant was issued a proposed reprimand; and
e. on June 28, 2011, Complainant was issued a reprimand.
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 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.
The Agency based its determination that no discrimination had been proven on the record developed during the investigation. According to the investigation, on March 21, 2011, his immediate supervisor sent Complainant to the Warrensburg CBOC in order to replace an employee who had called in sick. Complainant alleges that when he arrived to begin working, a fellow co-worker was rude to Complainant in front of patients and said that "we do not need you here." Complainant alleges further that the co-worker told him that Complainant is never needed there. Two days later on March 23, 2011, the record indicates that the co-worker told Complainant not to talk to her. Complainant did not report these alleged statements to his supervisor at the time that they occurred because he says she was too busy. However, according to the record, Complainant eventually reported the incidents to his supervisor and the supervisor of his co-worker, as well as the Agency's Chief of Health Administration Management and Revenue Service. Complainant's co-worker denied making the statements to Complainant, but admitted that she is known to ask co-workers not to talk to her while she is engaged in completing a work task under stressful conditions. The record does not indicate that any action was taken against Complainant's co-worker.
The record further indicates that Complainant made a verbal request and a request via email to his immediate supervisor that he not be assigned to work at the Agency's CBOC clinics in Warrensburg and Nevada because he had difficulty working with and following the orders of the supervisory nurses at those locations. According to the Agency, Complainant was in a float position which required him to report to work wherever he was needed. Complainant alleges that he was assigned to work where he did not want to because his supervisor "did not like him," and because of his race and prior EEO activity. According to his supervisor, however, Complainant agreed to work the float position and he was assigned where his presence was needed based on the staffing needs of the Agency.
On May 10, 2011, Complainant was issued a proposed reprimand after Complainant had been charged with several instances of poor performance including: an incident involving a breach of physical security on February 28, 2011, when Complainant provided a patient with an electronic access code for entering a restricted area of the Agency; a breach of privacy on May 2, 2011, when Complainant discussed patient information at his desk without muting or placing a telephone call on hold; and an incident on March 8, 2011, in which the CBOC received a complaint from a patient who was left waiting for ten minutes before being assisted by Complainant. The patient further alleged that Complainant became argumentative when she explained that she needed his assistance. The patient also reported that she observed Complainant answer a cellular telephone and overheard Complainant screaming into the phone telling the caller to stop calling him. The patient indicated that the incident caused her, as well as others in the waiting room, to feel unsafe. The Agency further indicates that Complainant was reported as having failed to schedule a CAT SCAN for patients on two different occasions. Complainant's conduct led to his being charged with failure to follow standard operation procedures.
Management witnesses also alleged between February 4, 2011, and April 19, 2011, Complainant used his Agency email account inappropriately when he sent messages to Agency officials regarding his dispute with the Union. Consequently, on June 27, 2011, the record indicates that the proposed reprimand was sustained and Complainant was found to have failed to follow standard operating procedure.
In its final decision on Complainant's EEO claim, the Agency determined that the responsible management officials had articulated legitimate, non-discriminatory reasons for their actions, which Complainant had failed to prove were pretext for discrimination. Moreover, the incidents involving the coworker, even if they occurred as alleged by Complainant, would not establish a discriminatory hostile work environment.
The instant appeal followed.
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").
Here, we agree with the Agency's finding of no discrimination. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd , 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). For instance, to establish a prima facie case of reprisal, Complainant generally must show that: (1) 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 his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of discrimination on any alleged basis, we find that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for the events alleged in this matter and Complainant failed to establish that the Agency's action was based on discriminatory motives.
To the extent that Complainant alleges that the Agency's conduct constituted discriminatory harassment, the Commission notes that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
After a review of the record, the Commission finds that Complainant's claims do not constitute discriminatory harassment. The Commission concludes that Complainant did not prove that he was subjected to conduct sufficiently severe or pervasive to create a hostile work environment and that he also failed to prove that the Agency's actions were unlawfully motivated by his protected classes. Accordingly, Complainant has not shown that he was subjected to a discriminatory hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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
January 18, 2013
__________________
Date
2
0120123233
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123233