01994047
08-23-2000
George Harris, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
George Harris v. Department of Veterans Affairs
George Harris, )
Complainant, )
)
v. )
) Appeal No. 01994047
Hershel W. Gober, ) Agency Nos. 97-1277
Acting Secretary, ) 96-1991
Department of Veterans Affairs, ) Hearing Nos. 370-97-2430X
Agency. ) 370-97-2748X
________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the final agency decision (FAD)
concerning his allegation that the agency discriminated against him
because of his race and color (African-American/black) and his sex (male)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is accepted by the Commission in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405).<1> For the reasons set forth below, we AFFIRM
the FAD.
ISSUES PRESENTED
1. Whether complainant proved that he was discriminated against, as
referenced above, when he was transferred to Palo Alto, demoted and
subjected to special oversight requirements.
2. Whether complainant proved that he was discriminated against, as
referenced above, when he was denied a performance cash award for the
period of April 1, 1994 to March 31, 1995.
BACKGROUND
Complainant, during the relevant time periods, was employed as a
Secretary and as a Nursing Assistant. Until late 1994, he was assigned
as a Secretary with the Adult Day Health Care Program (ADHCP) at the
agency's facility in Menlo Park, California. His immediate supervisor
was A-1. In late 1994, complainant learned that the ADHCP was closing
and that he and other staff members would be re-located elsewhere.
Complainant spoke to A-2, Chief, Extended Care Services, who was his
second-level supervisor. A-2 suggested that complainant move to the
Domiciliary Services Unit which he also operated. Therefore, in January
1995, complainant was assigned as a Secretary to the Domiciliary Services
Unit, at the same paygrade. Approximately one year later, complainant's
position was abolished because of a reduction-in-force (RIF). He was
then assigned to a Nursing Assistant position in Palo Alto, California.
Although his pay grade and salary were the same, he obviously was
provided different duties.
According to the agency, there were between five to ten people affected
by the closure of complainant's original unit. The agency maintained
that, in assisting the relocation of these employees, no assurances
were made that employees would be given the same type of position. When
complainant's position in the Domiciliary Services Unit was eliminated
pursuant to the RIF, no secretarial positions remained. Therefore,
complainant was placed in the Nursing Assistant position at the same
pay level. As a Nursing Assistant, complainant was now supervised by A-3,
a Nursing Supervisor. He served as a Staff Assistant and his duties were
primarily to provide escort services for confined patients. Complainant
was the only person assigned full-time to patient escort duties.
A-3 testified that, at first, she was satisfied with complainant's
job performance, but his behavior changed. According to A-3, on
many occasions, they could not find complainant when he was needed.
Complainant, A-3 stated, was often in the lounge watching television
during work time or was late getting back from his break or lunch.
She also testified that there was an incident of �aggressive behavior�
by the complainant towards a nurse. This incident was witnessed by
other nurses and a report of contact was issued.<2>
A-3 maintained that time and attendance were constant issues that
concerned her about complainant. He was often late and would
some times call at the last moment to report that he was sick. A-3
testified that something had to be done in order to keep track of
the complainant. Therefore, she instituted monitoring procedures
to make certain that complainant's whereabouts were known at all
times during the day. These procedures, among other things,
included a sign-in/sign-out log, a tracking system related to
his escort duties, a requirement that he post his assignments on
a board. A-3 stated that other staff members did not have to be
monitored in such a manner because they had specific duty stations.
Complainant was the only person who did not have a fixed duty station.
With respect to Issue 2, complainant maintained that he was
discriminatorily denied a performance cash award for the period of
April 1, 1994 to March 31, 1995. The task of evaluating complainant's
performance was divided between A-1, complainant's supervisor until
January 1995, and A-2, who oversaw complainant's performance from
January to April of 1995. A-1 recommended a performance rating of
�Outstanding,� but A-2 disagreed. According to A-2, �with the closure
of the ADHCP program and reassignment to a new position, [complainant's]
performance did not reach an outstanding achievement level.� For reasons
beyond A-2's control, however, complainant did receive an �Outstanding�
rating for the period of April 1, 1994 to March 31, 1995.<3> Because
he received a rating of �Outstanding,� complainant was eligible for a
cash award. The granting of the award, however, was at the discretion
of A-2. Complainant received his performance appraisal on May 11, 1995.
A-2 did not approve complainant's cash award, however, because he had not
served in the unit for the entire rating period. The record indicates
that A-2's rationale, for denying the cash award, was not put in writing
as provided by the agency's procedures.
On January 21, 1997, nearly two years after A-2 decided not to provide
complainant with a cash award, he sought EEO counseling claiming
discrimination based on race, color, and sex. According to complainant,
there was no indication, on his performance appraisal, as to whether or
not he was considered for an award or a statement concerning why he was
not given an award if he had been considered. He also indicated that he
had only recently become aware of the Medical Center's requirement that
when an employee received an �Outstanding� rating and does not receive
a cash award, there has to be a statement indicating why the award was
not provided.
Complainant filed formal complaints concerning Issues 1 and 2 in June
1996 and February 1997, respectively. Following an investigation, he
was provided a copy of the investigative files and notified of his right
to request a hearing before an EEOC Administrative Judge (AJ). After
complainant requested a hearing, the AJ determined that the complainants
should be resolved without a hearing because no genuine disputes of
material facts or questions of credibility existed. Additionally, the
agency moved to dismiss Issue 2 on the grounds that complainant sought
EEO counseling in an untimely manner.
On March 10, 1999, the AJ issued a recommended decision finding that
complainant was not discriminated against due to his race, color or
sex with respect to Issue 1. He also recommended that the agency
dismiss Issue 2 on the grounds that complainant sought EEO counseling
in an untimely manner. The agency subsequently issued final decisions
that adopted the AJ's merits determination regarding Issue 1 and that
dismissed Issue 2 on the grounds of untimely counselor contact. It is
from these decisions that complainant now appeals.
ANALYSIS AND FINDINGS
Issue 1
The AJ concluded that with respect to his claims of wrongful transfer,
demotion and oversight, complainant failed to establish a prima facie
case of discrimination. According to the AJ, there was no direct
evidence and no evidence from which to infer that any of the agency's
actions were undertaken because of complainant's race, color or sex.
The AJ noted that with respect to the transfer, complainant and two other
secretaries were transferred as a result of the ADHCP Program closure.
One, a white female, was transferred at her same paygrade to a Nursing
Service unit as a Ward Clerk. The other, an Hispanic female, was
assigned to Extended Care Services as a Secretary at her same paygrade.
According to the AJ, the record indicated that programs were eliminated,
jobs were cut, offices were closed, and many employees were affected by
the relocation. Complainant, according to the AJ, was treated exactly as
the other affected Secretaries. With respect to complainant's claim that
he was demoted, the AJ noted that his paygrade and salary did not change,
but remained the same. With respect to his wrongful oversight claim, the
AJ, noting that complainant had no regular duty station, was unaccounted
for a great deal of the time, and often needed to be tracked, found
that complainant failed to demonstrate that someone of a different race,
color or sex, under similar circumstances, was treated differently.
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
with respect to Issue 1 because the AJ's issuance of a decision without
a hearing was appropriate and a preponderance of the record evidence
does not establish that discrimination occurred.<4>
Issue 2
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29 C.F.R. �
1614.107(a)(2)) provides, in pertinent part, that the agency shall dismiss
a complaint or a portion of a complaint that fails to comply with the
applicable time limits contained in � 1614.105. 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified as 29 C.F.R. � 1614.105(a)(1)) requires
that complaints of discrimination should be brought to the attention
of the Equal Employment Opportunity counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within forty-five (45) days of the effective
date of the action. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Howard
v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999).
Thus, the time limitation is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent. Finally, our regulations provide
that the agency or the Commission shall extend the time limits when the
individual shows that he was not notified of the time limits and was not
otherwise aware of them, that he did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he was prevented by circumstances beyond his
control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
29 C.F.R. � 1614.105(a)(2).
According to complainant's testimony, �[i]n the past, when I acquired
those standards and met those standards [outstanding], it wasn't
any type of problem and went through the normal procedure, and I was
issued a superior performance award certificate, and I also received a
cash award.� See Testimony of Complainant at Fact Finding Conference,
page 10. Complaint also stated that �a[s] time went on,� he felt that it
was strange that he had not received an award because he �[w]as accustomed
to how the procedure has worked in my past experience.� Id. Complainant
also stated that he kept waiting and �through self-research� discovered
that there was a problem. Although complainant stated that he was upset
and tried to talk to A-2 about the attempt to lower his rating, he never
spoke to A-2 about the matter of the cash award. Complainant maintained
that he did not know if A-2 would have been receptive to a subordinate
telling him what to do; therefore, he never discovered the reason
he did not receive an award. After a careful review of the record,
the Commission finds that the complainant, by waiting almost 21 months
before he contacted an EEO counselor, did not exercise due diligence in
the pursuit of his claim; therefore, we AFFIRM the dismissal of Issue 2.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
decisions regarding Issues 1 and 2.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
__08-23-00_______ __________________________________
DATE Carlton M. Hadden, Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.
2According to the A-3's testimony, complainant was accused of raising
his voice and fist at a co-worker.
3According to the record, the position that complainant was transferred
to in the Domiciliary Services Unit did not have a position description;
therefore, complainant could only be rated for his performance in the
prior position, which was supervised by A-1.
4We find, however, with respect to complainant's wrongful oversight claim,
the AJ erred in concluding that complainant did not establish a prima
facie case of discrimination merely because he did not identify similarly
situated co-workers, who were of a different race, color or sex, who were
treated in a more favorable manner. To establish a prima facie case,
complainant need only present evidence which, if unrebutted, would support
an inference that the agency's actions resulted from discrimination
based on his race, color or sex. Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978). It is not necessary for complainant to show
that a comparative individual, from outside of his protected group, was
treated differently. O'Connor v. Consolidated Coin Caterers Corp., 517
U.S. 308 (1996); Enforcement Guidance on O'Connor v. Consolidated Coin
Caters Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996); Carson
v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996). Because A-3
provided legitimate, non-discrimatory reasons for her decision to monitor
complainant's whereabouts and complainant did not establish that those
reasons were a pretext, we find that the AJ's error was harmless.