01A40276_r
02-10-2004
Godfrey O. Herzog, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Godfrey O. Herzog v. Department of Veterans Affairs
01A40276
February 10, 2004
.
Godfrey O. Herzog,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A40276
Agency No. 2000-0570-2003101259
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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.
The record reveals that during the relevant time, complainant was employed
as a Management Analyst at the agency's Director's Office, VA Central
California Health Care System (VACCHCS), in Fresno, California.<1>
Complainant sought EEO counseling and subsequently filed a formal
complaint on February 26, 2003, alleging that he was discriminated against
in reprisal for prior EEO activity when the agency did not approve a
Voluntary Separation Incentive Payment (VSIP) for him to receive under
its Voluntarily Early Retirement Authority (VERA).
At the conclusion of the investigation, complainant was informed of
the right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
On August 29, 2003, the agency issued a final decision finding no
discrimination. The agency concluded that complainant established a prima
facie case of reprisal because management was aware of complainant's prior
EEO activity. The agency, however, concluded that management articulated
legitimate, nondiscriminatory reasons for not approving a VSIP for him
to receive under its VERA. Further, the agency found that complainant
failed to present any evidence which demonstrated that the agency's
articulated reasons for its actions were a pretext for discrimination.
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 complainant 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. See 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. See 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, the Commission finds that the evidence supports a
determination that the agency articulated legitimate, non-discriminatory
reasons for its employment actions. The record in this case contains
a sworn telephonic statement dated June 16, 2003, from complainant's
Supervisor. Therein, the Supervisor stated that on November 1, 2002,
the agency made an announcement that it had received Voluntary Separation
Incentive Payment (VSIP) under the Voluntary Early Retirement Authority
(VERA). The Supervisor further stated that eighteen employees, including
complainant, applied for the early retirement and incentive payment; and
that he was the deciding official of who would receive approval for the
incentive payment under the early retirement authority. The Supervisor
stated that on December 15, 2002, he approved six employees to each
receive a $25,000 VSIP. The Supervisor stated that his decision was
based on the following criteria: (1) that the approval of the VSIP
would allow for elimination or restructure of the employee's position;
(2) that management official under which the position was assigned had
agreed to eliminate the position or have it restructured; and (3) that
the VSIP would create an opportunity for the employee to leave government
service where otherwise he or she might not leave.
Furthermore, the Supervisor stated that he did not approve complainant
to receive VSIP because he learned on or before December 15, 2002,
that complainant had been selected for a position with the Disabled
American Veterans, a non-profit organization; and that the buy-out
was not necessary to encourage complainant to leave federal service
because his new position was an indication that he no longer wished to
be a federal employee. The Supervisor stated that complainant's prior
EEO activity did not factor in his decision not to approve complainant
to receive VSIP. The Supervisor further stated that out of the six
employees that were approved for the VSIP, one had prior EEO activity;
and that he was approved for the VSIP because he met the three criteria.
The record also contains a sworn telephonic statement dated June 5, 2003,
from the Employee Relations Specialist. Therein, the Employee Relations
Specialist stated that complainant had the option to cancel or rescind his
retirement prior to the end of December 2002, once he learned that he was
not approved for the VSIP. The Employee Relations Specialist stated that
out of the 18 employees who applied for the early retirement and incentive
payment, "seven retired, one resigned, four remained in the positions
that they were in, and of course six received the separation incentive."
Complainant has not demonstrated that the agency's articulated reasons for
not approving a VSIP for him to receive under its VERA were a pretext
for discrimination. Accordingly, the agency's decision finding no
discrimination 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
February 10, 2004
__________________
Date
1The record reveals that complainant retired
from agency employment on December 31, 2002. The record further reveals
that during the investigation, complainant's position was also called a
"Management Analyst," a "Program Analyst," or a "Staff Assistant."