01a53232_r
07-26-2005
Emil P. Wilson, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Emil P. Wilson v. Department of Health and Human Services
01A53232
July 26, 2005
.
Emil P. Wilson,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A53232
Agency No. IHS-065-00
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final decision in the above-entitled matter.
In a formal complaint filed on August 21, 2000, complainant claimed
that the agency discriminated against him on the bases of disability
(Fetal Alcohol Syndrome) and in reprisal for prior EEO activity when:
(1) On July 28, 2000, the agency issued complainant a low rating on
his Performance Appraisal; and
Effective August 9, 2000, the agency terminated complainant's
employment.
After complainant's complaint was accepted for investigation, complainant
requested a hearing before an Administrative Judge (AJ). However,
on May 24, 2004, the AJ issued an order, revoking complainant's right
to a hearing, on the grounds that complainant failed to respond fully
and timely to an order of the AJ. Complainant's complaint was remanded
to the agency for the issuance of a final decision.
In its final decision, dated March 9, 2005, the agency found no
discrimination. The agency determined that even assuming that complainant
established a prima facie case of disability discrimination and reprisal
discrimination, the agency articulated legitimate non-discriminatory
reasons for its actions, and complainant presented no evidence to show
that these reasons were untrue or a pretext for disability discrimination
or reprisal.<1>
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. United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
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).
Regarding claim (1), the record reflects that management issued
complainant unacceptable ratings on the performance evaluation at issue
because he failed to follow supervisory instructions, to include failure
to attend mandatory training and failure to perform assigned cleaning
duties (citing numerous specific instances). Management further indicated
that complainant engaged in disruptive behavior in the workplace and
that he required constant close supervision to ensure duty completion.
Regarding claim (2), the record reflects that management stated that
complainant was terminated based on the above described severe performance
deficiencies, as well as his abuse of sick leave, as documented in an
August 4, 2000 Letter of Warning.
A review of the record confirms that complainant's presents no evidence
to challenge the agency's articulated reasons, and we find no evidence
to suggest that these reasons are a pretext for disability discrimination
or reprisal.
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 decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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 26, 2005
__________________
Date
1For the purposes of this analysis only, we assume, without finding,
that complainant is an individual with a disability as defined by Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.