0120092926
11-23-2009
Kurt Tani, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Kurt Tani,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120092926
Agency No. MINT-08-0831-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 26, 2009 final decision concerning an equal
employment opportunity (EEO) complaint alleging 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.
During the period at issue, complainant was employed as a Production
Machinery Mechanic, WG-10, at the agency's Denver Mint Numismatic Division
in Denver, Colorado.
On October 6, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of race (Asian), national origin (Japanese) and in reprisal
for prior protected activity when:
on or about September 4, 2008, he received a letter of reprimand for an
on-the-job injury, when similarly situated employees who also suffered
job injuries did not.
At the conclusion of investigation, complainant was provided with a copy
of the report of the investigation and notice of the right to request a
hearing before an EEOC Administrative Judge or a final decision within
thirty days of receipt of the correspondence. Complainant did not
respond. On May 26, 2009, the agency issued the instant final decision.
In its May 26, 2009 final decision, the agency found no discrimination.
The agency determined that complainant did not establish a prima facie
case of race, national origin and reprisal discrimination. The agency
further found that assuming, arguendo, that complainant established a
prima facie case, management articulated legitimate, nondiscriminatory
reasons for its actions which complainant failed to show were a pretext.
Complainant's supervisor (S1) stated that he issued complainant a
letter of reprimand (LOR) dated August 22, 2008 for failure to wear
the proper protective equipment (PPE) when moving a wooden pallet.
The record reflects that on August 18, 2008, complainant was injured
when a wooden splinter entered his right finger. At the time of the
incident, complainant was not wearing gloves. The record further
reflects that after complainant pulled the splinter out, his finger
became infected. In the August 22, 2008 LOR, S1 determined that
complainant was in violation of the Safety Directive DMD-03-01 by not
wearing his PPE when moving a wooden pallet. Specifically, S1 stated
"Directive DMD-03-01, paragraph 2a, states, 'Protective gloves will be
worn when there is potential hand exposure to chemicals, sharp edges,
cuts, burns or abrasions.'"
S1 stated that he relied on complainant's prior disciplinary action in
making his determination to issue him a LOR. S1 stated that complainant
"had been given a written counseling by me for making an inappropriate
comparison to another employee in my presence. Since that written
letter was in [complainant's] file, this was the reason why it went to
a Letter of Reprimand for failure to wear the proper PPE." S1 denied
complainant's argument that he was treated differently than two named
employees under similar circumstances. Specifically, S1 stated that the
two named employees' injuries "were caused by different circumstances.
Those employees were wearing the proper PPE while doing their jobs."
Complainant's third-level supervisor (S3) stated that the action
complainant took "by not wearing gloves and not reporting that he had
a splinter in his finger and not going to the health office to make
sure that all of the splinter was removed, he got an infection in his
finger and caused the coloring division to have a OSA recordable for
his accident. This could have been avoided by following the rules."
The Safety and Occupational Health Manager (M1) stated that it is the
agency's procedure for employees to report any injury no matter how
small it is to their immediate supervisor. Specifically, M1 stated that
complainant "did not report the injury nor get the treatment from our
Health Office for his injury until it became infected. It is our policy
that all injuries no matter how small are reported to the immediate
supervisor immediately who would have sent him to the Health Office for
treatment."
On appeal, complainant argues that the agency "is very discriminatory
in the procedures for different employees."
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that after a careful review of the record,
the agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
Complainant, on appeal, has provided no persuasive arguments indicating
any improprieties in the agency's findings. Therefore, after a review of
the record in its entirety, including consideration of all statements on
appeal, it is the decision of the Equal Employment Opportunity Commission
to AFFIRM the agency's final decision because the preponderance of the
evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
November 23, 2009
__________________
Date
2
0120092926
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092926
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