01a52632
07-20-2005
Donnie King, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Donnie King v. Department of Veterans Affairs
01A52632
July 20, 2005
.
Donnie King,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52632
Agency No. 2003-0580-2004102012
Hearing No. 330-2005-00005X
DECISION
Complainant filed a timely appeal from a final agency decision, dated
February 7, 2005, pertaining to her formal EEO complaint 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.; 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. The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as an Information
Receptionist, GS-0304-05, in the Education Service Line at the agency's
Veterans Affairs Medical Center (VAMC) in Houston, Texas. In a formal
complaint dated April 29, 2004, complainant claimed that she was subjected
to unlawful employment discrimination on the bases of race, disability,
age and reprisal.
The agency framed the claims as follows:
(a) In 2003, she received her W-2 from the Internal Revenue Service
(IRS) indicating that she owed them $142.00. She claim that (WT) from
the Houston VAMC was responsible for her receiving the aforementioned
W-2 indicating she owed $142.00.
(b) On or about February 17, 2004, she received a bill for $138.48 from
the Houston VAMC for unpaid medical insurance.
On August 19, 2004, the agency issued a �Notice of Partial Acceptance.�
The agency dismissed claim (a) for failure to state a claim. The agency
found that because the W2 identified in claim (a) was issued by the
IRS, the claim was against the IRS and not the Department of Veterans
Affairs. According to the agency, the Department of Veterans Affairs
lacked jurisdiction in the matter.
The agency accepted claim (b) for investigation. The agency informed
complainant that she had no immediate right of appeal regarding claim
(a), but that she could file an appeal from the dismissal of that claim
once final action was taken on the remainder of her formal complaint.
At the conclusion of the investigation of claim (b), complainant was
informed of her right to request a hearing before an EEOC Administrative
Judge (AJ) or alternatively, to receive a final decision by the
agency. Complainant requested a hearing, but thereafter withdrew her
request. Consequently, the AJ returned the file to the agency for the
issuance of a final agency decision.<1>
In its February 7, 2005 final decision, the agency concluded that
complainant failed to establish a prima facie case of discrimination
based on race, age or disability.<2> The agency found that complainant
established a prima facie case of reprisal discrimination.
The agency then determined that it provided legitimate, non-discriminatory
reasons for the issuance of the medical insurance bill identified in claim
(b). First, the agency noted that complainant had prior knowledge of her
options regarding health insurance premiums while in a non-pay status.
The agency noted that complainant signed a medical insurance option
document agreeing to incur a debt, and pay for her insurance, instead
of allowing her benefits to lapse while she was in a non-pay status.
Second, the agency explained that the bill at issue was not prompted by
the RMO, or any other supervisory official. Instead, the agency found
that its payroll department initiated the bill because of a lapse in
complainant's Department of Labor benefits.
The agency determined that complainant failed to show that the agency's
reasons were a pretext for discrimination. The agency found that
complainant had not established that she was discriminated against
based on race, disability, age or reprisal. Complainant filed the
instant appeal.
Claim (a)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
As noted above, in claim (a), complainant claimed that she was
discriminated against when she received a W-2 from the IRS indicating
that she owed $142.00. The Counselor's Report notes that complainant
believes that the RMO was instrumental in having the W-2 form altered
so she would have to provide payment to the IRS.
The Commission agrees that complainant failed to state a claim.
The purported action identified in this claim does not arise from the
actions of the Department of Veterans Affairs but rather from those of
the IRS. The proper forum for complainant to contest the propriety of
the W2 is with the IRS. Complainant has not alleged a personal loss or
harm regarding a term, condition or privilege of employment as a result
of agency actions, for which there is a remedy.
The agency's dismissal of claim (a) for failure to state a claim was
proper and is AFFIRMED.
Claim (b)
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In claim (b), complainant states that she was discriminated against
when she received a bill from the agency for $138.48 for unpaid medical
insurance. In an affidavit, complainant stated that a named agency
official was involved, in that as the Office of Workers' Compensation
(OWCP) representative, he was responsible for the processing of necessary
information and forwarding it to the appropriate services. The agency
notes in its decision, that complainant believes that if the named agency
official had properly processed the OWCP claim, OWCP would have paid
her health insurance.
The Commission finds that complainant failed to provide any evidence
indicating that she was discriminated against when she was billed for the
unpaid medical insurance. In addition to failing to show how precisely
the named agency official was involved with the bill for payment,
or how he was motivated by any discriminatory animus, we agree that
complainant has not established that the agency's reasons were pretext
for discrimination.
Accordingly, the agency's final decision finding no discrimination
regarding claim (b) is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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).
COMPLAINANT'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
July 20, 2005
__________________
Date
1 The record indicates that a few weeks after
the case was returned to the agency, the agency discovered that it had
failed to accept the basis of reprisal. While the investigator noticed
the oversight after conducting the investigation, and included the basis
in the report's analysis, the reprisal basis was never investigated.
Consequently, the agency ordered a supplemental investigation to simply
re-interview witnesses with respect to the basis of reprisal and claim
(b).
2The Commission presumes for purposes of analysis only, and without so
finding, that complainant is an individual with a disability.