0120113896
01-24-2012
Angelo D. Shaw, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Angelo D. Shaw,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113896
Hearing No. 510-2009-00227X
Agency No. 200I05482008104178
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s May 26, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a GS-7 Carpenter at the Agency’s facility in West Palm Beach, Florida.
However, the record reflects that Complainant had been previously employed
in the Agency’s Police Service, but was released and reassigned to
the Engineering (Maintenance) Division.
On October 9, 2008, Complainant filed a formal complaint alleging that
the Agency subjected him to hostile work place discrimination on the
basis of reprisal for prior protected EEO activity under Title VII of
the Civil Rights Act of 1964 when:
1) on or about July 24, 2008, he was not selected for the position of
Police Officer, GS-083-06, under merit promotion announcement # 08-36;
2) on or about September 29, 2008, he was not selected for the position
of Police Officer, GS-083-06, under merit promotion announcement # 08-134;
3) on or about June 12, 2007, the Chief of Police forced him to give up
his extra duties as Alternative Timekeeper and Assistant Training Officer;
4) on or about December 8, 2007, the Chief of Police questioned him
about his "shaving profile" as a Police Officer;
5) in December 2007, the Chief of Police disapproved his Christmas and
New Year's request for leave;
6) on December 20, 2007, the Chief of Police sent an e-mail to Human
Resources (HR) to have him released to the Maintenance Department earlier
than HR had said;
7) during the first week of January 2008, the Chief of Police denied his
Authorized Absence (AA) request for January 4, 2008, when he was moving
to the Agency’s Maintenance Department;
8) during the beginning of March 2008, the Chief of Police refused to
reinstate him and told him that he must apply like other candidates;
9) on or about May 8, 2008 he received a letter stating that the
Supervisory Police Officer position GS-063-07, he applied for, had
been cancelled;
10) on or about June 9, 2008, his FY 2007 lost performance appraisal
was reissued with alterations to its original version by management; and
11) on June 24, 2008, in an e-mail to him entitled, Police Board Cancel,
the Chief of Police cancelled his interview with the board.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant initially
requested a hearing but withdrew his request. On February 9, 2011,
the AJ issued an order dismissing Complainant’s case from the hearing
process. Thus, the complaint file was forwarded to the Agency's Office
of Employment Discrimination Complaint Adjudication for a final Agency
decision based on the investigative record.
In its final decision, the Agency found no discrimination. The Agency
determined that, even if Complainant could establish a prima facie
case, management had recited legitimate, nondiscriminatory reasons
for its actions. The Chief of Police stated that: (1) he advised the
interview panel that Complainant would not be interviewed for the Police
Officer position announced under # 08-36 because Complainant was out of
the country; (2) he did not make a selection for announcement # 08-36
because the certificate expired; and (3) he asked HR to re-advertise
the portion and HR sent out another certificate (# 08-134).
Regarding the Police Officer position announced under 08-134,
the Chief of Police stated that: (1) he reviewed the interview
panel results ranking the candidates; (2) initially, he selected the
number one ranked candidate, but that offer was withdrawn because that
candidate was disqualified; and (3) ultimately, he selected the number
two ranked candidate, the selectee, a police officer from another
Agency facility. The three interview panel members for the Police
Officer position announced under 08-134 stated the following: (1)
they conducted a performance based interview of all the candidates; and
(2) the application packets were submitted to the Chief of Police upon
completion. Performance based interview score sheets for Complainant
and the eventual selectee indicate that they each had competitive job
interviews. One panel member awarded Complainant 90 interview points
and the selectee 87 points. Another panel member awarded Complainant 77
points and the selectee 90 points. And the third panel member awarded
Complainant 77 interview points. However, this panel member’s
interview score for the selectee is not in the file, but he stated
that he was not sure who the highest ranked candidate was. There are
no interview scores for the first selectee who was disqualified.
The Agency noted that the top ranked candidate had 22 years of
professional Police Officer experience and was extremely well qualified
for the announced vacancy. However, he was disqualified. The Agency
also noted that Complainant possessed the following qualifications: 10
years of government experience, including seven years of Agency police
officer experience and prior attendance at the Agency's police academy.
By comparison, the selectee had 13 years of professional police officer
and law enforcement experience and prior attendance at the Agency's
police academy.
Concerning claims that Complainant was forced to give up his extra
duties as Alternative Timekeeper and Assistant Training Officer,
the Chief of Police stated that he never removed Complainant from the
Timekeeper position. He indicated that Complainant was working at night,
and he was seeking other Timekeepers to assign to each element in order
to reduce problems getting information from each shift. The Chief of
Police stated that he never removed Complainant from any position. He
further stated that Complainant was never an Assistant Training Officer.
With respect to Complainant's claim of being questioned about his
"shaving profile,” the Chief of Police stated that police officers
must meet certain criteria that are contained in VA Directive 0730,
which states that male individuals must be clean shaven, free from facial
hair unless they work plain clothes. Complainant was a uniform police
officer and he had to have a clean face. The Chief of Police stated that
when he questioned Complainant about the hair on his face, Complainant
indicated that he had a shaving waiver. He stated that the waiver which
Complainant produced was an old medical document that is usually found
in military records and was dated 2005 or 2006. He indicated that he
asked Complainant for an updated waiver. However, it was never updated.
Regarding Complainant’s Christmas and New Year's request for leave, the
Chief of Police stated that he probably did deny the Complainant leave
because he didn't have enough people to cover the shifts. He indicated
that he advised all staff that requests for holiday leave needed to be
made in advance. He further indicated that Complainant had been off
previously during that month and wanted to take more leave. Concerning
Complainant’s AA request for January 4, 2008, the Chief of Police
stated that since the move was within the service, and Complainant was
working the graveyard shift, he didn't make him come in extra hours, or
drive from where he lives which is about 40 miles away to process out.
He noted that he told Complainant that if he could hang around after
his shift, he would give him two or three hours of AA to process out.
Complainant agreed to that proposal, but on the date that he was to
process out, Complainant indicated that he had to go because his ride
was leaving. The Chief of Police stated that he was going to charge
the Complainant with AWOL, but after a discussion with the union he did
give Complainant two to four hours of AA. He stated that Complainant
knew that no matter where he is in the Agency system, that there is a
checklist that he has to follow in order to be properly processed out.
The Chief of Police stated that Complainant did not live up to his
obligation, and he was not going to give him eight hours of AA.
In conclusion, the Agency found that the remaining events of which
Complainant complains, either individually or collectively fail to
rise to the level of unlawful harassment prohibited by Title VII.
Most importantly, there is no evidence that any of the actions or
decisions of Agency management were motivated by unlawful reasons.
Complainant failed to establish that any of management's reasons for its
actions were pretextual or unworthy of belief. Complainant failed to
establish discrimination under either the theory of disparate treatment
or unlawful harassment.
On appeal, Complainant asserts, inter alia, that the Agency improperly
found no discrimination in this matter. He further asserts that the
Chief of Police intentionally created a hostile work environment.
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 EEOC Management
Directive 110, 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”).
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. United States Postal Service, 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
Systems, 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 Systems, 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).
To establish a claim of hostile environment harassment, complainant
must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of
was based on his statutorily protected class; (4) the harassment affected
a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a
basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, Complainant asserted that based on his statutorily protected class,
management continuously subjected him to a hostile work environment.
However, we find that Complainant has not shown that he was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
his protected class, or the harassment complained of was based on his
statutorily protected class. Further, Complainant has not shown that
the purported harassment had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. While Complainant has cited
various incidents where Agency management took actions that were either
adverse or disruptive to him, we find that Complainant fails to show that
these incidents were as a result of unlawful discrimination. To the
extent Complainant is alleging disparate treatment with respect to his
claims, he has not shown that the Agency's reasons for its actions were
a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted 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
January 24, 2012
__________________
Date
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0120113896
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113896