01A53505
09-06-2006
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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