01a51973
07-26-2005
Linville Hawthorne, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Linville Hawthorne v. Department of Veterans Affairs
01A51973
July 26, 2005
.
Linville Hawthorne,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51973
Agency No. 200J-0325-2004101915
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. , Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final decision.
The record reveals that during the relevant time, complainant was formerly
employed as an Employment Specialist at the agency's Cleveland Regional
Office, located in Columbus, Ohio. Complainant sought EEO counseling and
subsequently filed a formal complaint on April 23, 2004. He alleged that
he was discriminated against on the bases of his race (African-American),
disability (hypertension), and age (D.O.B. 12/20/49; 54 years old) when:
(1) the agency terminated him from his position during the probationary
period;
he was required to answer the telephone unlike other employment
specialists.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of race, age or disability discrimination because
there were no similarly situated individuals outside of his protected
classes who were treated more favorably. Even so, the agency found
that the responsible management official, a Vocational Rehabilitation
and Employment Officer (S), stated that complainant did not have the
skills expected of a GS-11 Employment Specialist. He also stated that
complainant did not show sufficient improvement in his organization of
his records and in increasing the number of in-person contacts he made
with prospective employers. The agency concluded that complainant did
not demonstrate that the agency's reasons for terminating his employment
were a pretext for discrimination. Specifically, complainant's assertion
that he did not have a telephone, cell phone, an office, or the proper
training were not corroborated and not supported by the evidence.
On appeal, complainant contends that the evidence he produced was not
taken into account in the agency's final decision. He argues that he was
not given the opportunity to participate in a program called LEAD which
was designed to promote minorities into leadership positions within
the agency. The agency offered no additional comments and rested on
its final decision.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Loeb
v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a showing that age
was a determinative factor, in the sense that "but for" age, complainant
would not have been subject to the adverse action at issue); Heyman
v. Queens Village Committee for Mental Health for Jamaica Community
Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179
F.3d 929, 933-34 (D.C.Cir. 1999)(prima facie showing when disparate
treatment alleged based on a disability). He must generally establish
a prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978).
We may dispense with the prima facie inquiry, however, since the agency
has articulated legitimate and nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); see Holley supra;
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
For purposes of our analysis, we will assume without specifically
deciding, that complainant meets the definition of an individual with
a disability. Based on our review of the record, the Commission finds
that complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination. In reaching this conclusion, we note that complainant's
supervisor responded to the allegation that complainant received no
training by stating that training was offered on at least two occasions.
S described a specific training day during which complainant �shadowed�
another Employment Specialist to observe his activities. Addressing
complainant's allegation that he lacked access to a cell phone, S stated
that complainant was responsible for checking on the cost of a cell
phone and for submitting a request for acquisition. Complainant did
not refute either of these statements of S. Moreover, complainant did
not demonstrate that S's contentions that he was unorganized and that
he had made an improper charge on his government credit card, were not
believable. Complainant also did not rebut S's statement that he did
not make enough visits to prospective employers and that all of these
reasons contributed to his decision to terminate his employment.
We turn to complainant's contention that he was unfairly required to
answer the telephone while the secretary was absent. The Counseling
Psychologist who worked in the same office stated that all workers in the
office were required to cover the telephone when coverage was needed.
There was no showing that this was not true or that complainant was
treated any differently than other similarly situated workers in the
office.
For these reasons and after a careful review of the record, including
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we affirm
the FAD.
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
July 26, 2005
__________________
Date