01A22405_r
07-26-2002
Raymond Mitchell, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Raymond Mitchell v. Department of Veterans Affairs
01A22405
July 26, 2002
.
Raymond Mitchell,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22405
Agency No. 200I-892
Hearing No. 140-AO-8215X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, a Nursing Assistant, GS-0261-5
at the agency's Columbia, South Carolina VA Medical Center, filed a
formal EEO complaint on November 24, 1999, alleging that the agency had
discriminated against him on the basis of race (African-American) when:
(1) He learned that a Caucasian Nursing Assistant had been permanently
assigned to the Dermatology Surgery Clinic; and
He was not afforded the same overtime opportunities as another Nursing
Assistant.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination. Regarding claim 1, the AJ found that complainant's
contact of an EEO Counselor regarding the assignment of a Caucasian
Nursing Assistant was untimely. Specifically, that AJ determined that
complainant learned of the assignment in November 1997, but that he did
not initiate EEO counseling until September 1999. In addition, the AJ
concluded that even assuming that complainant's EEO contact in September
1999, was timely, complainant failed to establish a prima facie case with
respect to claim 1, in accordance with McDonnell Douglas Corp. v. Green,
411 U.S. (1973). The record reveals that complainant neither applied for
nor requested consideration for assignment to the position in question.
The AJ found that because complainant never requested to be assigned
to the position, he cannot establish that individuals outside of his
protected class were treated more favorably than complainant in the
selection process for the position.
Regarding claim 2, the record indicates that complainant's named
comparative, a Caucasian Nursing Assistant, earned substantially more
overtime than did complainant. The AJ found, therefore, that complainant
had established a prima facie case of race discrimination. The AJ
then concluded that the agency articulated legitimate nondiscriminatory
reasons for its actions. In an investigative affidavit, complainant's
supervisor testified that when overtime was available, she notified the
staff and asked for volunteers; and if several employees volunteered,
she would make the determination based on seniority. Complainant's
supervisor also testified regarding two types of overtime opportunities:
(1) a Saturday clinic and (2) when a clinic ran over. As for Saturday
clinics, complainant's supervisor testified that she could not recall
if complainant ever volunteered to work a Saturday clinic. She also
testified that complainant was the only nursing assistant assigned to
the emergency triage area and did not recall complainant staying when
a clinic ran over. On the basis of this testimony, the AJ found that
the agency had met its burden of articulating a nondiscriminatory reason
for its actions. Moreover, the AJ found that complainant was unable to
establish that the agency's articulated reasons were a pretext to mask
unlawful discrimination.
The agency's final order issued on February 28, 2002, fully implemented
the AJ's decision. Complainant makes no new contentions on appeal,
and the agency requests that we affirm its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal Camera
Corp v. National Labor Relations Board, 340 U.S. 474, 477 (1951)(citation
omitted). A finding regarding whether or not discriminatory intent
existed is a factual finding. See Pullman-Standard Co. v. Swint, 456
U.S. 273, 293 (1982).
After careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb the
AJ's decision. Therefore, it is the decision of this Commission to
AFFIRM the agency's final order.
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, 2002
__________________
Date