02970018
09-21-1999
Eddie Smith, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Eddie Smith v. Department of Veterans Affairs
02970018
September 21, 1999
Eddie Smith, )
Appellant, )
)
v. ) Appeal No. 02970018
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
INTRODUCTION
On June 19, 1997, Eddie Smith (the appellant) timely filed an appeal
with the Equal Employment Opportunity Commission (the Commission) from
a final (Step 3) agency decision dated June 11, 1997, concerning his
grievance filed against the Department of Veterans Affairs (the agency)
dated April 15, 1997. In his grievance, appellant alleged that the
agency discriminated against him in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �621
et seq. The Commission hereby accepts the appeal in accordance with
EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the record contains sufficient information
to determine if the agency discriminated against appellant based on race
(black), color (black) and age (over 40) when he was reassigned to a
different position.
BACKGROUND
Appellant filed a grievance on April 15, 1997, regarding his reassignment
from his cleaning duties in a particular wing of the medical center to
those of a bed washer/cleaner. Appellant's official position title
was that of Housekeeping Aide, WG-2, at a Veterans Affairs Medical
Center in Asheville, North Carolina. Among other alleged violations
of the collective bargaining agreement, appellant alleged that he was
reassigned for discriminatory reasons, in that a younger, white employee
with significantly less seniority was placed in his old assignment.
The bed washer position was considered a less desirable position, and
had previously been classified as WG-1.
In the third-step agency decision, the agency official (the Associate
Medical Center Director) found that, in relevant part, there was no
discriminatory motive involved in relocating the appellant within his
position description, that he was one of several employees relocated,
and that he had been relocated on three previous occasions. This appeal
followed. Appellant did not submit a supporting statement or brief.
In its response to appellant's appeal, the agency argued that appellant
had not made out a prima facie case of discrimination on any of
the claimed bases. It claimed that he had not provided evidence of
intentional discrimination or disparate treatment on the bases of race,
color or age, and that it was within management's prerogative to reassign
housekeeping aides to the location where they are most needed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.401(c) provides that a grievant may appeal
to the Commission from a final decision of the agency, the arbitrator
or the Federal Labor Relations Authority on a grievance when an issue of
employment discrimination was raised in a negotiated grievance procedure
that permits such issues to be raised.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For appellant to prevail, he must first 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; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
We find that the agency has not adequately explained why appellant
was replaced with a younger, white employee. The Step 2 grievance
decision contained in the record explained that appellant's supervisor
had not changed appellant's duties or his tour of duty, and that he had
"merely moved him into another area of the Medical Center, where he was
short staffed, to perform the same duties as a Housekeeping Aide WG-2."
The position description of a Housekeeping Aide, WG-2, also contained
in the record, lists the duties and responsibilities of the position:
"performs the full range of housekeeping duties in administrative, patient
and public areas including...cleaning beds..." It also specifies that the
position "performs other duties as assigned by the supervisor." However,
appellant's contention that he was replaced by a younger, white employee
was not addressed in the decision. Because the agency failed to address
the merits of appellant's discrimination claims in its final decision,
the record contains insufficient evidence pertaining to those claims
upon which the Commission could make its own findings. Accordingly,
appellant's grievance is remanded for a supplemental investigation on his
claims of discrimination. See Batchelor v. Department of the Air Force,
EEOC Request No. 05930671 (December 23, 1993); Kerr v. Department of the
Army, EEOC Request No. 05930012 (July 9, 1993); Ricks v. Department of
Health and Human Services, EEOC Appeal No. 02960014 (June 16, 1997).
After the investigation has been completed, the agency shall issue
a new final decision regarding the issues of discrimination raised in
appellant's grievance and shall provide appellant with appropriate appeal
rights pursuant to 29 C.F.R. �1614.401(c).
Accordingly, the decision of the agency is VACATED and REMANDED for
further processing in accordance with this decision and the proper
regulations.
ORDER
The agency is ORDERED to conduct a supplemental investigation into
appellant's allegations of discrimination, which shall include the
following information:
1) an affidavit(s) from the relevant supervisory personnel explaining
why appellant was moved into the bed washer position and why the younger,
white employee was given appellant's job, instead of placing the younger,
white employee into the less desirable bed washer position directly;
2) any other relevant information regarding appellant and the younger,
white employee that would help explain the management decision to reassign
appellant.
The agency shall allow appellant to provide a response to the new
information contained in its supplemental investigation. Upon completion
of the investigation, the agency shall issue a new Step 3 grievance
decision which expressly addresses appellant's discrimination claims.
The supplemental investigation and issuance of the final grievance
decision must be completed within sixty (60) calendar days of the date
this decision becomes final. A copy of the final decision must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Sept. 21, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations