01970449
03-03-1999
Richard S. Smith, Appellant, v. Togo D. West, Jr., Secretary, Department of Veteran's Affairs, Agency.
Richard S. Smith v. Department of Veteran's Affairs
01970449
March 3, 1999
Richard S. Smith, )
Appellant, )
)
v. ) Appeal No. 01970449
) Agency No. 95-1217
Togo D. West, Jr., ) Hearing No. 170-95-8451X
Secretary, )
Department of Veteran's Affairs, )
Agency. )
)
DECISION
Appellant timely appealed the final decision of the Department of
Veteran's Affairs (agency), concerning his complaint alleging that
the agency discriminated against him in violation of Title VII of the
Civil Rights Act of 1964, 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. The appeal is accepted by the Commission in
accordance with the provisions of EEOC Order No. 960.001.
Appellant filed a formal complaint on March 20, 1995, alleging that
the agency discriminated against him on the bases of race (Black),
color (black), reprisal (prior EEO activity), and age (D.O.B. 9/30/44,
age 50) when he was harassed on January 3, 1995, by his supervisor.
Appellant described the incident of harassment as follows: when his
supervisor asked him to bring in proof of his broke hot water heater
after appellant requested emergency annual leave. The agency accepted
appellant's complaint, conducted an investigation, provided appellant
with a copy of the investigative report, and advised appellant of his
right to request either a hearing before an EEOC administrative judge
(AJ) or a final agency decision. Appellant requested a hearing.
A hearing was held on August 15, 1996. On August 19, 1996, the AJ
issued a bench decision which found that the agency did not discriminate
against appellant as alleged. The agency subsequently adopted the AJ's
recommended decision in a final agency decision (FAD) dated October 10,
1996.
At the time this complaint arose, appellant was employed with the agency
as a Housekeeping Aid and was also the Union President of the National
Association of Government Employees (NAGE). Because of his position as
Union President, appellant works only four hours a day in his position
as a Housekeeper Aid. On the morning of January 3, 1995, appellant
called the agency to request emergency annual leave because the pressure
valve on his water heater had blown off and the water heating element
had burned up. Appellant left his request with the Secretary to the
Service and asked her to relay the problem he was having at home to his
immediate supervisor (Responsible Official, RO). Sometime thereafter,
appellant spoke with his supervisor by telephone and requested leave for
the remainder of the day. The Supervisor granted appellant emergency
leave as requested, but told appellant to bring in documentation which
would show proof of the problem he was having at home. Believing he
was a victim of discrimination, appellant sought EEO counseling and,
subsequently, filed a formal complaint.
In her recommended decision, the AJ found that appellant failed to
establish a prima facie case of disparate treatment discrimination on
all bases alleged. The AJ further determined that even if appellant
had established an inference of discrimination, the agency sufficiently
rebutted appellant's prima facie case by articulating a legitimate,
nondiscriminatory reason for requiring appellant to bring in the
documentation requested. Specifically, the supervisor explained that
he made this request based upon appellant's "solidly bad attendance
record," and the fact that appellant used a great deal of unscheduled
leave, specifically emergency annual leave. He further testified
that he made the request because he had doubts about whether appellant
actually had an emergency. Finding that the agency's explanation was
sufficiently clear and specific to provide appellant the opportunity to
show pretext, the AJ finally concluded that appellant failed to provide
any evidence to prove that the agency's explanation was pretext for
unlawful discrimination. The AJ made specific credibility findings
with regard to the supervisor's testimony and found him to be credible.
The AJ also noted that appellant's testimony during the hearing was
not credible. Specifically, the AJ noted that appellant appeared to be
smirking and not taking the hearing seriously. She further concluded
that appellant was unable to articulate reasons why he felt he was
discriminated against by the supervisor other than his belief that the
RO did not like him because of his role as Union President.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); see also Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253-56 (1981); and Wrenn v. Gould, 808 F.2d
493, 500 (D.C. Cir. 1987) (applying the McDonnell Douglas standard
to reprisal cases). The Commission concludes that, in all material
respects, the AJ accurately set forth the facts giving rise to the
complaint and the law applicable to the case. We further find that
the RO's testimony regarding appellant's frequent emergency leave usage
rebutted any inference of discrimination appellant may have established.
As appellant offered no additional persuasive evidence in support of his
claim on appeal, we discern no legal basis to reverse the AJ's finding
of no discrimination. Accordingly, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final agency decision
finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations