01996607
09-18-2000
Jesse Symlar, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Jesse Symlar v. Department of Veterans Affairs
01996607
September 18, 2000
.
Jesse Symlar,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996607
Agency No. 972115
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD), dated July 21, 1999, concerning his 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> Complainant, a GS-12 Management Analyst in the agency's
Office of Financial Management Systems, Development Division alleged in
his complaint that he was discriminated against on the basis of race
(African-Hispanic) color (darker hue), sex (male) and in retaliation
for prior EEO activity when the agency:
Failed to make a Special Contribution Award to the complainant;
2. Diminished the complainant's promotional opportunities when it
rewrote the complainant's position description from systems analyst to
management analyst; refused to accept complainant's written work plan
and rewrote it to its specifications; attempted to diminish complainant's
accomplishments at VA, in a June 5, 1997, performance counseling session;
and improperly placed or failed to expunge 1995-96 performance materials
in the complainant's Official Personnel File (OPF) after, in a grievance
settlement, agreeing to their removal from the OPF.
The agency accepted the complaint and conducted an investigation. At the
conclusion of the investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). An AJ was assigned to the case, however,
the AJ remanded the case to the agency when complainant failed to appear
for a prehearing conference. Following the remand, the agency issued
a FAD finding no discrimination. From the FAD, complainant brings the
instant appeal.
Claim 1 (Special Contribution Award)
Based on McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its
progeny, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253-56 (1981) and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993),
we conclude that complainant failed to prove, by a preponderance of the
evidence, that the agency's articulated reasons for its actions were
a pretext for discrimination.<2> The evidence shows that complainant
submitted a suggestion to the agency concerning possible improvements
in the agency's internal computer communications systems. The agency
accepted the suggestion and implemented certain of the improvements
recommended by complainant. In recognition of complainant's contribution,
the agency gave him a $500 Employee Suggestion Award. In his complaint,
complainant asserts that he should also have received a Special
Contribution Award for having made the suggestion and that he did not
because of discrimination and retaliation.
The agency explains that complainant did not receive a Special
Contribution Award because such awards are given in recognition of
exemplary work performance and complainant's suggestion, although it
proved useful to the agency, did not relate to complainant's work duties.
This is a legitimate, nondiscriminatory reason for the agency's action.
Complainant has adduced no evidence tending to show that the agency's
explanation is a pretext designed to conceal intentional discrimination.
Claim 2 (Diminished Promotional Opportunities)
Complainant contends that the agency has thwarted his efforts to obtain
a promotion through a variety of actions including rewriting his position
description, revising his work plan and improperly �diminishing� his work
performance in the course of a performance counseling session. We find
that the evidence does not support complainant's contentions. The agency
denies that complainant's position description was ever revised during
the relevant period.<3> Complainant adduced no evidence other than his
own generalized assertions on this point. The agency also denies that
complainant's work plan was revised. Documentary evidence supports the
agency's position. In fact, it appears that complainant submitted a
proposed revised work plan to his supervisor and that the supervisor
declined to adopt the revised plan. Finally, the agency denies that
anyone diminished or mischaracterized complainant's work performance
at the performance counseling session in question. Complainant offers
no contradictory evidence other than his own self-serving, conclusory
assertions. Thus, complainant has not established a prima facie case
of discrimination, having failed to prove that these discriminatory acts
occurred.
With respect to complainant's claim that his official personnel file
contained a document the agency had agreed to remove, the record
shows that in August 1996 complainant filed a grievance disputing his
performance appraisal for the period April 1, 1995 to March 31, 1996,
contending, among other things, that he had been discriminated against.
The grievance was resolved by a settlement agreement in which the agency
agreed to remove the superseded performance evaluation from complainant's
official personnel file. Later, complainant learned that the disputed
performance evaluation had not been removed from his official personnel
file.<4>
The agency concedes the truth of complainant's allegation that despite
having agreed to do so, the agency failed to remove the document.
It contends that the failure was inadvertent and not intentional.
The agency points out that the employees who have control over the
complainant's official personnel file do not report to the management
officials whom complainant has accused of discrimination and have
no motivation to discriminate or retaliate against complainant.
This is a legitimate, nondiscriminatory reason for the agency's action.
Complainant has failed to show it to be a pretext designed to conceal
intentional discrimination.
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
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 18, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary where, as here, the agency has
articulated a legitimate, nondiscriminatory reason for its actions,
i.e., complainant's failure to meet the educational qualifications for
the position. See Washington v. Department of the Navy, EEOC Petition
No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from
whether the complainant has established a prima facie case to whether he
has demonstrated by a preponderance of the evidence that the agency's
reason for its actions was a pretext for discrimination. Id.; see also
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-17 (1983).
3The record shows that complainant's position was �rewritten� most
recently in 1993.
4We note that complainant is arguing, in essence, that the agency has
failed to comply with its obligations under the negotiated grievance
procedure. This type of collateral attack normally will not be
entertained in the EEO complaint process. See Lingad v. United States
Postal Service, EEOC Request No. 05930106 (June 24, 1993)(�Except in
limited circumstances, the EEO process is not a mechanism to attack
negotiated grievance procedures.�) Here, however, neither party having
raised the issue, we need not discuss it further.