01a04221
09-14-2000
James E. Franklin, Sr., Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
James E. Franklin, Sr. v. Department of Veterans Affairs
01A04221
September 14, 2000
.
James E. Franklin, Sr.,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04221
Agency No. 981725
Hearing No. 280-99-4199X
DECISION
James E. Franklin, Sr. (complainant) timely initiated an appeal from the
agency's final action concerning his equal employment opportunity (EEO)
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.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405). Complainant alleges
he was discriminated against on the bases of race (African-American)
and reprisal (prior EEO activity) when he was terminated during his
probationary employment as a Lead Medical Clerk on January 21, 1997 for
failing to follow supervisory directives.
BACKGROUND
The record reveals that complainant, a probationary Lead Medical Clerk
at the agency's Kansas City, Missouri Medical Center, filed a formal
EEO complaint with the agency on April 2, 1997, alleging that the agency
had discriminated against him as referenced above.<2> At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race or reprisal discrimination. Specifically, the AJ
found that complainant failed to demonstrate that similarly situated
employees not in his protected classes were treated differently under
similar circumstances. The AJ noted that neither of the employees
cited by complainant was similarly situated to him, as neither was a
probationary employee. The AJ also noted that complainant failed to
establish that the responsible management official, the supervisor whose
directives complainant failed to follow (RMO), knew about his prior EEO
activity. The AJ concluded that complainant submitted no other evidence
suggesting that race or reprisal motivated his termination.
The AJ went on to find that the agency articulated a legitimate,
nondiscriminatory reason for its actions; namely, that complainant failed
to follow supervisory directives. The AJ noted that complainant did not
dispute that he was given at least two direct supervisory instructions
by RMO on December 31, 1996, neither of which he followed. The AJ
concluded that even if RMO acted in a rude or overbearing manner, he
was nonetheless complainant's supervisor and complainant was obliged
to follow his directives. The AJ further found that complainant was a
probationary employee and that, as testified to by a Personnel Manager,
the practice of the agency is to terminate probationary employees for
infractions in lieu of imposing lesser discipline. Finally, the AJ
noted that the agency gave complainant a chance to explain his actions,
but complainant demonstrated no contrition for his failure to follow
the directives. The AJ concluded that the agency had a legitimate
nondiscriminatory reason for terminating complainant.
Finally, the AJ found that complainant did not come forward with
evidence to demonstrate that the agency's stated reason was pretextual.
The AJ noted that complainant felt that RMO treated African-American
employees with less respect than White employees, but that complainant
admitted that RMO never made any racial remarks. Finding that there was
no evidence of unlawful motivation, the AJ determined that the agency
had broad discretion to carry out personnel decisions, and should not
be second-guessed by a reviewing authority. The agency implemented the
AJ's decision.
Complainant raises no new contentions on appeal. The agency asks that
its final action be affirmed.
FINDINGS AND ANALYSIS
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that the agency's action was in retaliation
for complainant's prior EEO activity or was motivated by discriminatory
animus toward complainant's race. While complainant and other witnesses
testified that African-American employees were treated unfairly by RMO,
no specific examples of disparate treatment were offered. Complainant
did not cite any similarly-situated individuals outside his protected
class who were treated more favorably than he, nor did he establish
that RMO was aware of his prior protected activity. Moreover, there
is no dispute that complainant, a probationary employee, failed to
follow the supervisory directives of RMO on at least two occasions on
the same day or that the normal policy of the agency was to terminate
probationary employees who committed infractions. As complainant offered
no evidence that the decision to terminate him was motivated by race or
reprisal, rather than by his behavior, we discern no basis to disturb
the AJ's decision. Accordingly, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final action.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 14, 2000
__________________
Date
1 On 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.
2 The complaint included other allegations, which were procedurally
dismissed by the agency in a previous FAD. According to the agency and
Commission records, complainant did not file an appeal of this dismissal.