Keith K. Bell, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 16, 2000
01986324 (E.E.O.C. Mar. 16, 2000)

01986324

03-16-2000

Keith K. Bell, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Keith K. Bell v. Department of Veterans Affairs

01986324

March 16, 2000

Keith K. Bell, )

Complainant, )

)

v. ) Appeal No. 01986324

) Agency No. 98-0631

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

On August 20, 1998, Keith K. Bell (hereinafter referred to as

complainant) filed a timely appeal from the August 11, 1998, final

decision of the Department of Veterans Affairs (hereinafter referred

to as the agency) concerning his complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq. The appeal is timely filed (see 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with

64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).

For the reasons that follow, the agency's decision is AFFIRMED.

The issue presented in this appeal is whether the complainant has proven,

by a preponderance of the evidence, that the agency discriminated

against him in reprisal for previous EEO activity when he received a

fully satisfactory rating in November 1997.

Complainant filed his formal complaint on January 8, 1998. Following an

investigation, he was advised of his right to request a hearing or an

immediate final agency decision (FAD). He requested a FAD, and the

agency issued a FAD, finding no discrimination. Complainant has filed

the instant appeal without comment.

Complainant was a Medical Administration Specialist and served on a

rotating basis as the administrative officer for the day. After September

1996, following a reorganization, complainant, inter alia, objected to a

new supervisor (S1) and refused to arrange transportation for patients

on several occasions. In March 1997, S1 issued complainant a letter

of counseling. With regard to complainant's rating, S1 acknowledged

that he was aware of complainant's prior EEO activity and explained that

complainant's performance problems, poor attitude, and complaints from

others merited no higher than a fully satisfactory rating.

In general, claims, such as the complainant's, alleging disparate

treatment are examined under the tripartite analysis first enunciated in

McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt

v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,

324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). Initially, for

complainant to prevail, s/he must first establish a prima facie case

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. McDonnell

Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438

U.S. 567 (1978). Once the agency offers a legitimate, nondiscriminatory

reason for its actions, it is complainant's burden to demonstrate by

a preponderance of the evidence that the agency's action was based on

prohibited considerations of discrimination, that is, its articulated

reason for its action was not its true reason but a sham or pretext

for discrimination. Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993).

Complainant establishes a prima facie case of reprisal discrimination,

in that, (1) he engaged in prior protected activity; (2) the acting

agency official was aware of the protected activity; (3) he was

subsequently disadvantaged by an adverse action; and, (4) there is a

causal link between the protected activity and adverse action. Hochstadt

v. Worcester Foundation for Experimental Biology, Inc., supra; Manoharan

v. Columbia University College of Physicians and Surgeons, 842 F.2d 590,

593 (2d Cir. 1988). The causal connection may be shown by evidence

that the adverse action followed the protected activity within such a

period of time and in such a manner that a reprisal motive is inferred.

Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980). To support

a finding of unlawful retaliation, there must be proof that the acting

agency official(s) took the action at issue because of complainant's

prior protected activity and sought to deter complainant or others.

EEOC Compliance Manual on Retaliation, No. 915.003 (May 20, 1998),

p. 8-16.

We find that the agency articulated legitimate, nondiscriminatory reasons

for the rating issued to complainant, i.e., complainant's performance

did not merit a higher rating. Complainant has not shown that the

agency's explanation was untrue or based on prohibited factors, nor did

he demonstrate that he was singled out for discrimination. Therefore, we

find that the agency did not discriminate against complainant in reprisal.

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 16, 2000

Date Carlton Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the 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 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.