01a53166
07-07-2005
Henry Lee, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Henry Lee v. Department of Veterans Affairs
01A53166
July 7, 2005
.
Henry Lee,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A53166
Agency No. 200M-0554-2004-101427
DECISION
Complainant timely initiated an appeal from an agency final decision
dated March 9, 2005, concerning his formal EEO complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Medical
Supply Technician at the agency's Medical Center in Denver, Colorado.
Complainant filed a formal complaint on March 30, 2004. Complainant
claimed that he was subjected to harassment due to a hostile work
environment when:
(1) On or about January 16, 2004, complainant's co-workers made comments
that complainant was �lazy� because of his light duty assignment; and
Complainant also claimed that he was discriminated against on the bases
of race (African-American), sex (male), disability (back impairment),
and in reprisal for prior EEO activity when:
On or about January 14, 2004, complainant was not selected for the
position of Supply Technician (GS-2005-06, under vacancy announcement
number 03-127).
At the conclusion of the investigation, complainant was informed of
his 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.
In its final decision, the agency made reference to its previous �partial
dismissal� of claim (1), and again found that this claim, standing alone,
failed to state an actionable claim of harassment.
Regarding claim (2), the agency determined that even assuming that
complainant demonstrated a prima facie case of discrimination on
each alleged protected basis, the agency articulated a legitimate,
non-discriminatory reasons for its action. Specifically, the agency
determined that the selectee (SE) was ranked number one by the selection
panel, and had years of hands-on experience with the computer based
program for agency equipment and agency supply processes. In particular,
the agency found that SE had experience �processing equipment receiving
reports, turn-ins and dealt with all of the using services in the
facility,� whereas complainant had much less knowledge and/or experience
with the agency's equipment program or supply processes. The agency
indicated that SE had more pertinent experience as compared to any of
the other candidates, with the selecting panel scoring SE at 80 points,
and complainant at 44 points, the lowest of all the candidates.
The agency found that complainant failed to present any evidence
that the above reasons were untrue or a pretext for discrimination.
Accordingly, the agency concluded that complainant failed to establish,
by a preponderance of the evidence, that he was discriminated against
as claimed.
Claim (1)
Unless the conduct is very severe, a single incident or a group of
isolated incidents will not be regarded as creating a discriminatory work
environment. See James v. Department of Health and Human Services, EEOC
Request No. 05940327 (September 20, 1994); Walker v. Ford Motor Company,
684 F.2d 1355 (11th Cir. 1982). Even when viewed within the context of
the entire complaint, and in a light most favorable to complainant, claim
(1) is too isolated and insufficiently severe to establish a hostile
work environment. Consequently, we find that claim (1) was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state
a claim. Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
Accordingly, we AFFIRM the agency's dismissal of claim (1).
Claim (2)
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<1>.
See Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). 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).
Here, we concur with the agency that the identified selecting official,
SO, articulated a legitimate, non-discriminatory reason for selecting
SE for the position at issue, in that she described SE's qualifications
in detail, in particular his extensive experience with the agency's
equipment program and supply processes. Additionally, SO noted, and
the record confirms, that complainant had little experience with the
agency's equipment program and supply processes. The record reflects that
eight candidates made the best qualified list, including complainant,
and that each received an interview conducted by a panel, and that SE
received the highest score, and complainant received the lowest score.
In challenging this reason, complainant asserts that he has 14 years of
experience in the military and with the Department of Defense, but does
not otherwise describe how this experience makes him better qualified for
the position as compared to SE. Moreover, beyond a bare assertion that
he is better qualified, and that his non-selection was discriminatory,
complainant provides no evidence to show that the agency's reason for
its action was untrue or a pretext for discrimination.
Accordingly, we AFFIRM the agency's finding of no discrimination regarding
claim (2).
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 7, 2005
__________________
Date
1For the purposes of this analysis only, we assume, without finding,
that complainant established that he is a qualified individual with a
disability, as defined by the Rehabilitation Act.