Isaac James, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 31, 2009
0120070610 (E.E.O.C. Mar. 31, 2009)

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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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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