01a62760
09-13-2006
Raleigh G. Adams, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Raleigh G. Adams,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A62760
Agency No. 200H-0528-2005102091
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 7, 2006 final decision 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.
During the relevant period, complainant was employed as a part-time
Environmental Services (ES) Aide at a New York facility of the agency.
On April 6, 2005, complainant initiated contact with an EEO Counselor
alleging that the agency discriminated against him based on reprisal
for prior EEO activity under Title VII of the Civil Rights Act of 1964
when his supervisor (S1) (1) on March 31, 2005, issued him a written
counseling citing "failure to perform duties of the position" and (2) on
December 29, 2004, issued him a reprimand1 citing "inappropriate comments
to your supervisor." Subsequently, on May 19, 2005, complainant filed a
formal complaint alleging that the agency discriminated against him on the
basis of reprisal when it acted as alleged in claims (1) and (2) of his
counseling pre-complaint, (3) paid ES aides who work in the Cardiac Care
Unit higher wages for the same housekeeping coverage, which he learned on
March 3, 2005, and (4) placed complainant on absence without leave (AWOL)
for two days and did not correct his wages until five months later.2
In a Notice of Partial Acceptance dated June 28, 2005, the agency
dismissed claim (3) pursuant to 29 C.F.R. � 1614.107(a)(2) for failure
to the raise the matter with an EEO Counselor and the fact that it is
not like or related to other accepted allegations; and accepted claims
(1), (2) and (4) for investigation. In its Notice, the agency informed
complainant that it would not investigate claim (3) and he did not have
the right to immediate appeal of the dismissal.
In response to accepted claim (1), S1 stated that he received
complaints about the unsanitary conditions of a surgical care area
assigned to complainant so the area was evaluated on two days and found
to be unacceptable so he issued complainant a letter of counseling.
Regarding accepted claims (2) and (4), the agency stated that complainant
was absent for two days without requesting leave from S1 so, upon his
return to work, he was informed that the absences would be charged
as AWOL at which time complainant stated aggressively "if I'm short
in my pay, you're [S1] going to be short." The agency stated that S1
perceived the statement as a threat. The agency added that, based on
its Table of Penalties, it could have issued complainant a suspension
but issued him a reprimand instead. Further, the agency stated that
complainant filed a union grievance on the reprimand and AWOL charges,
and the AWOL charges were resolved in complainant's favor in April 2005
so he received his earnings shortly thereafter.
Following an investigation of claims (1), (2) and (4), the agency
informed complainant of his right to request a hearing before an
EEOC Administrative Judge or an immediate final agency decision.
Complainant requested the latter. In its March 7, 2006 final decision,
the agency reiterated its dismissal of claim (3), with appeal rights,
and found no discrimination as to claims (1), (2) and (4). Specifically,
the agency found that complainant failed to show that the legitimate,
nondiscriminatory reasons articulated by the agency for its actions were
pretext.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision,
as to claims (1), (2) and (4), because the preponderance of the evidence
of record does not establish that discrimination occurred. We agree that
complainant failed to establish pretext. As to claim (3), we agree and
affirm the agency's dismissal pursuant to 29 C.F.R. � 1614.107(a)(2).
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
September 13, 2006
__________________
Date
1In his report, the EEO Counselor noted that complainant explained
that he did not initiate contact regarding claim (2) within 45 days
of when it occurred because he filed a union grievance on the matter.
The Counselor stated further that he received, from a source other than
complainant, documentation indicating that the reprimand was reduced to
an admonishment. The agency indicated that the incumbent union agreement
does not prohibit dual filing of a grievance and a formal complaint.
2We note that claims (2) and (4) arise from the same incident.
??
??
??
??
2
01A62760
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
01A62760