0120070610
03-31-2009
Isaac James, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Isaac James,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070610
Hearing No. 330200500013X
Agency No. 2003085120041000437
DECISION
On November 14, 2006, complainant filed an appeal from the agency's
October 12, 2006 final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
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(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Cemetery Caretaker at the agency's facility in Houston, Texas.
On December 22, 2003, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of disability (knee injury, severe
depression) and in reprisal for prior protected EEO activity when:
1. in July 2003, management refused to provide him with a new pair
of steel-toed work boots;
2. on October 2 through 4, 2003, management charged him absent
without leave (AWOL);
3. on or about October 10, 2003, management terminated complainant
from his position.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on February 23, 2006.
In his decision issued September 26, 2006, the AJ found that complainant
failed to prove that he was subjected to discrimination as alleged.
The agency's final order adopted the AJ's finding of no discrimination.
Complainant makes no arguments on appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
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. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, we concur with the AJ's finding that assuming, arguendo, complainant
established a prima facie case of disability and reprisal discrimination,
the agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the record shows that complainant had been
provided with a new pair of steel-toed work boots through the agency's
Vocational Rehabilitation Program (VRP), but that the boots had either
been stolen or misplaced prior to complainant entering into duty in the
Cemetery Caretaker position. The record also shows that when complainant
reported for duty he was wearing boots borrowed from a neighbor, and
although he requested new boots from his supervisor (S1), complainant
acknowledged at the hearing that he did not inform S1 that the boots he
was wearing were not his own. (Hearing Transcript, 76). In his hearing
testimony, S1 stated that he did not believe complainant was entitled
to new boots because he had been provided with a pair through VRP and
that the boots complainant was wearing were in excellent condition.
(H.T., 161).
With respect to complainant being charged AWOL, the record shows that
complainant was hospitalized from October 2 through 4, 2003, but did
not inform the agency of his whereabouts. The record also shows that
complainant did not report to work on October 6 or 8, 2003, nor did he
contact the agency to request leave. (Report of Investigation, B-1, 27).
The record shows that upon his return to work, complainant provided
medical documentation to support his absence on October 2 through
4, but not for October 6 and 8. (R.O.I., B-2, 18-20). Accordingly,
complainant was charged AWOL for October 6 and 8, 2003. We note that S1
also testified that he had discussed the leave policy with complainant
on several occasions prior to October 2003. (H.T. 167-168). Finally,
the record reflects that by letter dated October 10, 2003, complainant was
terminated from his position during his probationary period for failing
to comply with the agency's leave policies. (R.O.I., Exhibit C-6).
Specifically, management stated that complainant was charged with AWOL
on September 26, October 6, and October 8, 2003, when he failed to report
for duty and failed to contact the agency to request leave. Id.
Upon review of the record, we find that substantial evidence of record
supports that AJ's finding that complainant failed to show that the
agency's articulated reasons for its actions were pretext for unlawful
disability or reprisal discrimination. Accordingly, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 31, 2009
Date
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0120070610
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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