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.