0120091244
04-23-2009
Charles E. Burton, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Charles E. Burton,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091244
Agency No. 200L-0614-2005-103482
Hearing No. 490-2006-00085X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's December 8, 2008 final order concerning his equal employment opportunity (EEO) complaint claiming 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.
On September 11, 2005, complainant filed the instant formal complaint. Therein, complainant claimed that the agency discriminated against him on the bases of race (African-American), sex (male), and in reprisal for prior EEO activity when:
(1) on June 26, 2005, he was removed from his supervisory position and reassigned to another position; and
(2) on August 1, 2005, he was not selected for the position of Lead Patient Services Assistant, GS-303-7, advertised under Vacancy Announcement Number 083-05.
On August 13, 2008, a hearing was held before an EEOC Administrative Judge (AJ). After considering the testimony of the witnesses, the AJ found the AJ found that complainant failed to prove by a preponderance of the evidence that he was discriminated against because of his race, sex, and reprisal.
Regarding claim (1), the AJ found that complainant had been removed from a supervisory position and was reassigned to another position on June 26, 2005, following his being selected for a GS-9 position that was one of twenty-five open jobs. The AJ further found that the direct supervisor (DS) stated that after complainant was selected for the subject position, the agency discovered that the position that it had offered complainant did not in fact belong to the Business Office, but to another unit. The AJ noted that DS, however, offered complainant a comparable position at the same grade and pay level as the one he was originally selected to receive within the Business Office.
Regarding claim (2), DS was the selecting official for the position of Lead Patient Services Assistant, GS-303-7. The AJ noted that DS chose the selectee for the subject position because DS had determined that the selectee was best qualified. Specifically, DS stated that the selectee had better communications skills and was a better team worker than complainant. The AJ also noted that DS stated that she did not select complainant for the subject position because after an office was moved, DS discovered files and records that had previously been occupied by complainant and determined that there were several matters that complainant had not handled properly. Specifically, DS concluded that there were files and records that complainant did not take care of, including congressional letters, letters to employees about their tuberculosis testing, and a letter from a veteran indicating that he had not heard back concerning his online application for over a year. The AJ noted that DS testified that as a supervisor, complainant should have made sure that those files were taken care of.
Regarding complainant's assertion that DS referred to him and other African-Americans as "boy," the AJ noted that complainant stated that DS had used the phrase "boy" only once in his presence; and both complainant and DS concurred that he had objected to her use of the phrase after she allegedly used it in his presence. The AJ further concluded that following complainant's objection, there is no evidence in the record indicating that DS used the phrase again.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not a discriminatory intent existed is a factual finding. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
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 order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
April 23, 2009
__________________
Date
2
0120091244
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091244