0120113815
11-21-2012
David W. Bussey, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
David W. Bussey,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113815
Hearing No. 420-2010-00178X
Agency No. 200I-0322-2009104407
DECISION
Complainant filed an appeal from the Agency's final decision, dated July 7, 2011, concerning his equal employment opportunity (EEO) complaint. He alleged employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Veterans Service Representative at the Agency's Veterans Service Center in Montgomery, Alabama.
On December 1, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him, on the bases of disability (Post Traumatic Stress Disorder), age (over 40), and reprisal for prior unspecified protected EEO activity, during the period from October 21, 2008 to November 24, 2009.
Complainant's allegations pertain to 24 incidents of harassment, which may be characterized as alleging that the Agency bypassed Complainant for 11 promotions, subjected him to unwarranted admonishments, denied him additional training, assigned him work beneath his grade level, failed to appropriately process his time cards, placed him on administrative leave for a week, and management belittled him.
The record shows that Complainant was unsure as to whether he had filed a prior EEO complaint. In addition, the record does not show that management officials were aware of Complainant's medical condition, although his supervisor was aware that Complainant was approved for a disability retirement.
The pertinent record reflects that Complainant believed in 2008 to 2009 that Agency officials had engaged in fraud, waste and abuse involving government property. Complainant stated that he "saw things that were not legal - so, [I] went up over his head." Complainant sent emails to high ranking Agency officials to inform higher-management of his beliefs. Complainant acknowledged, during his deposition during the fact-finding, that to the extent that he was being harassed, it was because of his "whistle blowing" activities and "the emails that [he] sent up the chain of command, the DVA, up to the secretary." He averred that "all of it started with the whistle-blowing". Complainant also conceded that his age claim was based on his perception that the Agency had a policy was to hire younger people, because the average age of those hired was well below his age.
In addition, the record shows that an employee had reported Complainant to the police because she believed that Complainant was following her home from work.
The Agency acknowledged that it did not select Complainant for any of the promotions at issue, because the Agency selected the candidates that it viewed as the best qualified. The Agency also stated that Complainant was provided the same training time as other employees. The supervisor testified that his assignments were based on the needs of the office and he was treated the same as other employees in terms of his time and attendance. His supervisor stated that she issued Complainant an admonishment because she found non-shred documents in Complainant's shred box. The supervisor acknowledged that Complainant was counseled on his extensive use of emails and the need to follow the chain of command. The supervisor testified that she placed Complainant on administrative leave while he was being investigated for conduct related reasons and concerns that had been raised about Complainant's behavior.
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). Complainant requested a hearing but the AJ denied the hearing request because Complainant failed to follow her scheduling orders. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency reasoned that Complainant offered no evidence in support of his claims, other than his own testimony, and that Complainant conceded that any difference in the treatment he received was due to his whistle-blowing activities.
Alternatively, the Agency found that Complainant failed to prove that management's articulated reasons for the subject actions were a pretext for unlawful discrimination.
This appeal followed. Complainant offered no brief in support of his appeal.
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").
An "individual with a disability" is a person who has, has a record of, or is regarded as having a physical or mental impairment whish substantially limits one or more of that person's major life activities, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. � 1630.2(j).
For purposes of our analysis, we assume, without finding that Complainant is an individual with a disability.
In analyzing a disparate treatment claim, in the absence of direct evidence, a complainant must demonstrate that: (1) he is an individual with a disability; (2) he is "qualified" for the position held; (3) he was subjected to an adverse employment action; and (4) the circumstances surround the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). A similar standard applies for proof of age discrimination and reprisal. If the Agency articulates a legitimate, non-discriminatory reason for the adverse employment action, Complainant must then demonstrate by a preponderance of the evidence that the Agency's proffered reason is a pretext for discrimination.
Even assuming for purposes of analysis that Complainant was an individual with a disability, Complainant offered no evidence that the Agency's action were based on his alleged disability.
Turning next to the age discrimination claim, we find that Complainant failed to establish the elements of his prima facie claim because he failed to identify similarly situated individuals who were treated better. The record also shows that the Agency selected the individuals whom it viewed as the best qualified. Complainant offered no evidence that would show the Agency's reasons were a pretext for discrimination.
Finally, Complainant did not establish reprisal because he was unsure as to whether he filed an EEO claim and there is no evidence that any of the actions at issue were due to any prior EEO activity. On the contrary, the record establishes that the problems began when Complainant went outside the chain of command to voice his concerns about fraud, waste and abuse. It is well settled that engaging in whistle-blowing is not protected EEO activity.
For these reasons, we find that the preponderance of the record supports the Agency's finding of no discrimination.
Accordingly, we AFFIRM 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 tends 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
November 21, 2012
__________________
Date
2
0120113815
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113815