Eddie Smith, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 21, 1999
02970018 (E.E.O.C. Sep. 21, 1999)

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