Larry D. Hawkins, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 6, 2006
01A53505 (E.E.O.C. Sep. 6, 2006)

01A53505

09-06-2006

Larry D. Hawkins, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Larry D. Hawkins,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A53505

Agency No. 2003-0674-2003104459

DECISION

JURISDICTION

On April 7, 2005, complainant filed an appeal from the agency's January

10, 2005 final decision (FAD) concerning his 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. The appeal is deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

a food service supervisor, WS-4, at the Central Texas Veterans Healthcare

System in Temple, Texas. On July 17, 2003, complainant contacted an EEO

Counselor and filed a formal EEO complaint on October 21, 2003, alleging

that he was discriminated against on the basis of race (African-American),

sex (male), and in reprisal for prior protected EEO activity under Title

VII when:

1. On November 11, 2003, management suspended complainant for fourteen

days;

2. On September 11, 2003, management charged complainant with eight

hours Absent without Leave (AWOL); and

3. The agency constantly harassed complainant about how he supervises

employees, which made his work environment seem like a "prison camp."

In a partial dismissal letter dated April 2, 2004, the agency dismissed

claim 3 for failure to state a claim and accepted claims 1 and 2 for

investigation. At the conclusion of the investigation of claims 1 and 2,

complainant was provided with a copy of the report of investigation and

notice of his right to request a hearing before an EEOC Administrative

Judge (AJ). When complainant did not request a hearing within the time

frame provided in 29 C.F.R. � 1614.108(f), the agency issued a final

decision pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant

failed to prove that he was subjected to discrimination as alleged.

FINAL AGENCY ACTION

In its final decision, the agency found no discrimination. Specifically,

the FAD found that complainant failed to establish a prima facie case of

discrimination or reprisal for claims 1 and 2. The FAD further concluded

that the agency provided legitimate, non-discriminatory reasons for its

actions that were not persuasively rebutted by complainant with evidence

of pretext.

CONTENTIONS ON APPEAL

On appeal, complainant contends that it is a "well-known fact" that his

supervisor treated him unfairly and harassed him continuously regarding

his job performance. The agency did not submit a statement in response

to complainant's appeal.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999)(explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

ANALYSIS AND FINDINGS

Claims 1 and 2

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). 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 legitimate, nondiscriminatory reasons for the

personnel actions 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).

Upon review, we find that the agency provided legitimate,

non-discriminatory reasons for suspending and charging complainant AWOL.

Specifically, agency management stated that complainant was issued a

suspension notice because he failed to follow instructions to issue

AWOL charges to employees in a timely manner. Regarding complainant's

AWOL charge, management stated that complainant made an annual leave

request for September 11, 2003 that was denied because his supervisor

determined that there was not adequate supervisory coverage for the

division on that day. Management maintained that complainant was charged

AWOL because he did not come to work on September 11, 2003 after being

informed that his leave request had been denied. In response, complainant

submitted a copy of an October 10, 2003 rebuttal statement he presented

to management regarding the disciplinary charges. In the statement,

complainant contended that he did not deserve the suspension because an

agency official advised him to delay issuing AWOL charges to employees,

and he was out on sick leave for a portion of the period the agency

maintains the AWOL charges should have been issued. Complainant further

maintained that the AWOL charge against him was improper because the

agency was able to cover his position when he did not report to work

on September 11, 2003. We find that complainant's arguments do not

persuasively demonstrate that that the agency's articulated reasons

for its actions were pretext for unlawful discrimination or reprisal.

Therefore, we find that the agency properly found no discrimination for

claims 1 and 2.

Claim 3

Complainant asserted that his supervisor constantly harassed him about

how he supervised employees, which made his work environment seem like

a "prison camp." The Commission has held that where a complaint does

not challenge an agency action or inaction regarding a specific term,

condition, or privilege of employment, the claim may survive as evidence

of harassment if it is sufficiently severe or pervasive to alter the

conditions of the complainant's employment. See Harris v. Forklift

Systems, Inc., 510 U.S. 17, 23 (1993).

Upon review of claim 3, we first note that in a letter dated February 13,

2004, the agency requested additional information about this claim from

complainant, including the dates and details of the alleged harassment.

Complainant did not respond to the agency's request, and the agency

dismissed claim 3 for failure to state a claim in a partial acceptance

letter dated April 2, 2004. We find that the agency properly dismissed

claim 3 because complainant failed to specify any actions that are

sufficiently severe or pervasive enough to state a claim of harassment.

CONCLUSION

Accordingly, after a careful review of the record, including complainant's

contentions on appeal and arguments and evidence not specifically

addressed in this decision, we affirm the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 6, 2006_____________

Date

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01A53505

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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