James E. Franklin, Sr., Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 14, 2000
01a04221 (E.E.O.C. Sep. 14, 2000)

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.