0120083849
02-13-2009
Richard Becker,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083849
Agency No. 200H-0632-2007104033
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 28, 2008 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
Complainant alleged that the agency discriminated against him on the
bases of sex (male), age (over 40), military service1, and in reprisal
for prior EEO activity when:
(a) on August 13, 2007, he received a letter dated August 9, 2007,
notifying him of his non-selection for the Patient Relations Assistant
position as announced in MPA # 07-55;
(b) by letter dated October 30, 2007, management notified complainant
that he was qualified and referred, but not selected for the Medical
Supply Technician, GS-4/5/6, MPA # 07-48; and
(c) on November 16, 2007, he received a poor rating on one of the
questions on a Supervisor Appraisal of Employee for Promotion forms.
At the conclusion of the investigation, complainant was provided with
a copy of the report of the investigation and notice of the right to
request a hearing before an EEOC Administrative Judge or a final decision
within thirty days of receipt of the correspondence. Complainant did
not respond. On August 28, 2008, the agency issued the instant final
decision.
In its August 28, 2008 final decision, the agency found no discrimination.
Specifically, the agency found that complainant did not establish
a prima facie case of sex, age and reprisal discrimination.
The agency nevertheless found that management articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext for discrimination.
Regarding claim (a), the Human Resources Specialist (S1) stated that
complainant, a Nursing Assistant, was not referred for the position of
Patient Relations Assistant because he lacked specialized experience.
S1 stated that the selectee was more qualified than complainant because
he was a Patient Relations Specialist when he applied for the subject
position. Furthermore, S1 stated that during the relevant time, he was
not aware of complainant's age and prior protected activity.
Regarding claim (b), the Chief, Logistics, Resources Management Service
(C1), stated that he was the recommending official for the position of
Medical Supply Technician. C1 stated that he was looking for someone with
"medical supply knowledge (different types of supplies), an understanding
of automated computer systems, process of receiving and distribution."
C1 stated that complainant was qualified and referred for the subject
position, but was not selected because he "lacked the experience required,
specifically our automated computer system." C1 stated that while
complainant "works as a Nursing Assistant he does have some experience
with the basic medical supplies used in patient care and he has shared
that he works for Walmart stores with inventory management, however,
he did not express any experience using automated computer systems."
Furthermore, C1 stated that he did not discriminate against complainant
based on his sex, age and prior protected activity.
Regarding claim (c), the Nurse Manager (NM) stated that the purpose of
the Supervisor Appraisal of Employee for Promotion form was "to review
any future plans for the following year, and to evaluate performance."
NM stated that she has never given complainant poor rating. Specifically,
NM stated "I have been unaware of any issues that the complainant has had.
He has NEVER come to me to discuss any of these issues. I have NOT rated
him in a poor or unsatisfactory manner [emphasis added]." Furthermore,
NM stated that she did not discriminate against complainant based on
his sex, age and prior protected activity.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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 a legitimate, nondiscriminatory reason for the personnel
action 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); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant did not
prove were a pretext for discrimination, and that complainant has not
demonstrated that these reasons were a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 13, 2009
__________________
Date
1 The record reflects that on January 24, 2008, the agency issued a
partial dismissal. Therein, the agency accepted claims (a) - (c) for
investigation. However, the agency dismissed military service as a basis
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
A claim of discrimination based on military service is not within the
Commission's jurisdiction. Therefore, we find that the agency properly
dismissed military service as a basis for failure to state a claim.
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0120083849
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083849