Agency.

Equal Employment Opportunity CommissionJun 28, 2005
02a50003 (E.E.O.C. Jun. 28, 2005)

02a50003

06-28-2005

Agency.


James E. Stuemke v. Department of the Treasury (Internal Revenue Service)

02A50003

June 28, 2005

.

James E. Stuemke,

Grievant,

v.

John W. Snow,

Secretary,

Department of the Treasury

(Internal Revenue Service),

Agency.

Appeal No. 02A50003

Agency Nos. 2003-14385

DECISION

Grievant filed a timely appeal with this Commission from a final agency

decision denying his grievance of unlawful 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. In his grievance, the grievant

alleged that the agency discriminated against him in reprisal for prior

EEO activity when on June 11, 2003, complainant was charged with being

absent without leave (AWOL). For the following reasons, the Commission

AFFIRMS the agency's final decision.

The record reveals that on June 17, 2003, grievant's supervisor informed

grievant that he faced the possibility of being charged with AWOL due

to his failure to properly account for his whereabouts on June 11, 2003.

On June 19, 2003, grievant was issued a Notice of AWOL Charge(s). On June

24, 2003, grievant filed a grievance alleging �purposeful discrimination�

for the AWOL charge and submitted an e-mail to Supervisor accounting for

his time. The record contains documentation that Supervisor accepted

grievant's explanation and ultimately did not charge him with AWOL.

At the conclusion of the grievance process, the agency issued its final

decision on July 17, 2003,<1> which advised grievant that he would not

be issued AWOL. The agency issued a memorandum on September 18, 2003

indicating that no discrimination occurred.

EEOC regulation 29 C.F.R. � 1614.401(d) provides that a grievant

may appeal to the Commission from a final decision of the agency,

the arbitrator, or the Federal Labor Relations Authority (FLRA) on a

grievance when an issue of employment discrimination was raised in a

negotiated grievance procedure that permits such issues to be raised.

In the absence of direct evidence of discrimination, grievant's claim is

examined under the three-part analysis originally enunciated in McDonnell

Douglas Corporation v. Green. 411 U.S. 792 (1973); see Hochstadt

v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318

(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell

Douglas to retaliation cases). First, grievant must 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. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the grievant must prove, by a preponderance of the

evidence, that the legitimate reason(s) proffered by the agency was a

pretext for discrimination. Id. at 256. Grievant can prove pretext

directly by showing a discriminatory reason more likely motivated the

agency or indirectly by showing that the agency's proffered explanation

is unworthy of credence. Id.

Grievant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas,

411 U.S. at 802). Specifically, in a reprisal claim, and in accordance

with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester

Foundation for Experimental Biology, 425 F.Supp. 318, 324 (D. Mass.),

aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of

Veterans Affairs, EEOC Request No. 05960473 (November 20, 1997), a

grievant may establish a prima facie case of reprisal by showing that:

(1) he engaged in protected 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 the protected

activity and the adverse treatment. Whitmire v. Department of the Air

Force, EEOC Appeal No. 01A00340 (September 25, 2000).

Upon review, the Commission finds that grievant has failed to meet

his initial burden of establishing a prima facie case of reprisal

discrimination. Though grievant was issued a Notice of AWOL Charge(s)

by his supervisor, the record reflects that grievant was not charged with

AWOL. Thus, grievant has failed to demonstrated that he was subjected

to adverse treatment by the agency. Furthermore, assuming arguendo that

the grievant established a prima facie case of reprisal discrimination,

we find the agency articulated a legitimate, nondiscriminatory reason for

charging the grievant with AWOL, namely that grievant initially failed

to properly account for his whereabouts on June 11, 2003. We also find

grievant has failed to offer any evidence to show that the agency's

articulated reason for charging him with AWOL was more likely than not

a pretext for discrimination.

Accordingly, the agency's decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the grievant 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), 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 19848,

Washington, D.C. 20036. 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).

GRIEVANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

June 28, 2005

__________________

Date

1The record shows that the Union elected not to pursue the grievance to

binding arbitration.