01A44291_r
09-28-2004
John Shek, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
John Shek v. Department of Veterans Affairs
01A44291
September 28, 2004
.
John Shek,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44291
Agency No. 200N-0640-2003-102231
Hearing No. 370-2004-00045X
DECISION
Complainant timely initiated an appeal from the agency's final order
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that in November 2002, complainant received a letter
from the agency confirming that he had recently accepted their offer of
employment as a Diagnostic Radiologic Technologist, GS-647-6, in the Palo
Alto Radiology Service Division. The agency instructed complainant to
report to the Human Resources Office on December 2, 2002, for processing.
On December 2, 2002, complainant reported to the Human Resources Office
as instructed, but there was some confusion regarding processing him as
a new employee. The record reveals that complainant did not report for
work thereafter. On January 15, 2003, the Chief Technologist (Chief)
sent complainant a letter noting that complainant had failed to work
since December 2, 2002. In his letter, the Chief requested that
complainant contact him concerning his employment with the agency,
and warned that if he did not hear from complainant by January 31,
2003, he would initiate his termination. The record reveals that on
January 30, 2003, complainant sent a letter to the Chief stating that
(1) it was unfair that other workers were earning three times the salary
he was to earn in his new position; (2) the Human Resources Office had
seemed confused when he reported for processing on December 2, 2002;
and (3) on December 8, 2002, he had sent a letter to the Acting Chief
Technologist inquiring about his starting date but had not received
any response. The record reveals that on February 20, 2003, the Chief,
Radiology Service sent complainant a letter informing him that he would be
terminated, effective fourteen days from the date he received the letter
because he had been continuously absent since December 2, 2002, but had
not requested, nor been granted, any approved leave for his absences.
Complainant was discharged from agency employment effective March 15,
2003.
Complainant filed the instant formal EEO complaint dated April 24, 2003.
Therein, complainant claimed the agency discriminated against him on the
bases of race (Asian Pacific-Islander/Chinese American), national origin
(Chinese), and in reprisal for prior EEO activity when:
(1) on March 15, 2003, he was terminated from the position of Diagnostic
Radiologic Technologist, GS-647-6/10, for which he had not applied or
accepted; and
(2) management failed to consider and/or hire him for the position of
Diagnostic Radiologic Technologist, GS-647-9, originally announced under
Announcement Number 02-150, and re-announced under Vacancy Announcement
Number 02-207JC.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On April 2, 2004, the AJ issued a Notice
of Intent to Issue a Decision Without a Hearing, allowing the parties
to file a written response to the Notice. The record reveals that only
complainant responded. Thereafter, the AJ issued a decision without a
hearing on April 26, 2004, finding no discrimination.
In her decision, the AJ concluded that complainant failed to establish
a prima face case of race, national origin or reprisal discrimination.
Regarding claim (1), the AJ found that it was undisputed that
complainant did not intend to accept the position of Diagnostic
Radiologic Technologist from which he was terminated for failing to
report to work. Assuming arguendo that complainant had established a
prima face case of race, national origin, and reprisal discrimination, the
AJ found that complainant failed to demonstrate the agency's legitimate
non-discriminatory reasons were a pretext. The AJ found that in his
affidavit, the Chief Technologist for the Radiology Service stated that
after he explained to complainant about his being Absent Without Leave
(AWOL), complainant �was never really bothered by the AWOL.� The Chief
Technologist stated that complainant �just insisted on having me furnish
him with the list� of personnel with the same pay grade as his. While
complainant claimed that the agency considering him AWOL was inappropriate
given the fact he never received a formal work schedule, and other
employees outside of his protected classes were hired as full-time
employees earning a higher salary, the AJ found that complainant failed
to proffer evidence that the agency's articulated reasons for its actions
was a pretext for discriminatory animus. Furthermore, the AJ determined
that a review of the record reveals there was an honest miscommunication
between management and complainant concerning his absences.
Regarding claim (2), the AJ found that the agency articulated that
complainant was not considered and/or hired for the position of Diagnostic
Radiologic Technologist, under Vacancy Announcement Number 02-207JC,
because he did not apply for the position. The AJ found that in her
affidavit, the Human Resources Specialist stated that when complainant
�came to see me with copies of the application, it was GS-5 actually.
He applied for the GS-5. And the GS-5 is Diagnostic Radiology
Technologist.� The Human Resources Specialist further stated that the
Acting Chief Technologist informed her that the �GS-9 position wasn't
open to [complainant] because it was only for internal applicants.�
The AJ also found that in her affidavit, the Acting Chief Technologist
stated that complainant �was only applying for the 5/6, because there
was nothing open at the time he applied.� Furthermore, the AJ found that
complainant failed to show that the agency's articulated reason was more
likely than not pretext to mask unlawful discrimination and retaliation.
The agency's final order implemented the AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that any
of the agency's actions were motivated by discriminatory animus toward
complainant's protected classes. The agency final order implementing
the AJ's finding of no discrimination is therefore AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 28, 2004
__________________
Date