01973778
02-15-2000
Robert H. Pierson Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Robert H. Pierson v. Department of Veterans Affairs
01973778
February 15, 2000
Robert H. Pierson )
Complainant, ) Appeal No. 01973778
)
v. ) Agency No. 94-781
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
_________________________________)
DECISION
Complainant filed an appeal with this Commission from a final decision
of the Department of Veteran Affairs (agency) concerning his complaint
of unlawful employment discrimination, in violation of the Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
The appeal is accepted in accordance with EEOC Order No. 960.001.
According to the Final Agency Decision (FAD), complainant's claim of
discrimination is based upon his race (African American and Native
American Indian) and color (black)<2> when:
(1) he was subjected to harassment on October 23, 1993, by being scolded
for leaving the fire alarm system inoperative;
(2) the agency failed to place complainant on the call-in list which
resulted in a lack of overtime;
(3) the agency failed to rotate complainant as an acting supervisor; and
(4) on the basis of reprisal (prior EEO activity), complainant was
reassigned to the boiler plant and subjected to harassment when he was
referred to as a member of "Team B" and not given equipment.
On November 30, 1993, complainant sought informal EEO counseling
and on January 6, 1994, filed a formal complaint stating that on
account of his race and color he was not called in for overtime or
given acting supervisory duties. In addition, complainant stated
that he was unjustifiably reprimanded and spoken to with profanity by
his supervisors. Complainant's complaint was accepted for processing.
Following an investigation, the agency issued a FAD, on February 24,
1997, finding no discrimination. It is this agency decision which the
complainant now appeals.
BACKGROUND
Complainant is employed as an electrician, WG-10-4, in the Engineering
Service at the agency's St. Albans Extended Care Center (Center).
The Engineering Service is responsible for maintenance, repairs and
operation of building, equipment, transportation and grounds at three
Veterans Affairs Medical Center facilities (VMAC). At the time of the
complaint, there were approximately 135 employees in Engineering Service
working for three divisions (Brooklyn Poly Place; Brooklyn Out Patient
Clinic; and St. Albans Extended Care) with movement back and forth
as needed. At St. Albans, there are 16 blacks, 22 whites and 6 others.
Complainant was the only black in the Electric Shop at St. Albans (6 white
and 1 black). He has received performance ratings of "Fully Successful"
throughout his employment at the Center.
Overtime
Complainant alleges that he has been denied overtime with respect to
emergency repairs at the Center and that only white employees are called
in for overtime. Specifically, complainant alleges that on July 29,
1993, two white employees and S1 (white) were called in for overtime.
Complainant, who allegedly lives 15 minutes from the Center, was not
called-in. Complainant also states that on August 15, 1993, a white
employee was called-in for overtime. Complainant claims that on August
16, 1993, he spoke to S1 about the call-in procedures and was told that
complainant would be placed on the cascade call-in list. On September
7, 1993, complainant states that there was a power failure and two white
employees were called-in to the Center for overtime. After speaking with
S1, complainant states that he had received some calls to work overtime,
but not nearly as much as other white employees. Complainant feels that
since he lived the closest to the station, he should have been utilized
in the case of an emergency at the Center.
S2 testified that his predecessor established the call-in procedure which
included a list of employees who he felt were appropriate to call when
an emergency arose. When emergencies arise, administrative officials
who are on duty in the evening call the first name on the list. If the
person called is not at home, he would automatically be placed at the
bottom of the list and the next employee on the list would be called.
S2 further testified that the system was in place long before he arrived
at the Center and that he had nothing to do with creating the list of
names. S2 testified that he did not alter the call-in/overtime system
and his only involvement was countersigning a memorandum prepared by his
predecessor which kept the overtime call-in system in place.
S2 further testified that when complainant first came to him to complain
about the call-in/overtime policy, he was not on the cascade list.
S2 explained that in response to complainant's complaint, he immediately
placed him on the list. S2 testified that since complainant was placed on
the call-in list, he had been called-in a number of times. According to
S2, complainant was not at home on a few occasions when called.
According to S1, each supervisor would keep an alphabetical list of
the next person available for overtime. If that person was unavailable
or did not want to work overtime, the offer would be made to the next
person on the list. Administrative officials on duty at the time of
the emergency would make the calls.
According to complainant's witness (W1) (white), the call-in list is
made up of S2's personal favorite employees and the procedure of the
call-in changes depending on who is making the calls. In addition, W1
testified that, on one occasion, S1 referred to complainant as a "Ni--er."
According to the FAD, complainant failed to establish a prima facie
case of disparate treatment with respect to the overtime issue because
complainant was placed on the overtime list and unsuccessful attempts had
been made to reach him. In addition, the agency found complainant failed
to prove pretext or discriminatory animus in the agency's articulated
non-discriminatory reasons for its employment action.
While we find the agency's analysis flawed, we also find the record
insufficient to determine whether or not complainant received disparate
treatment based upon his race and/or color. Specifically, we are unable
to determine whether or not there was a call-in procedure and if it was
consistently and uniformly applied. In addition, it is not clear from
the record why complainant was not originally placed on the call-in list.
We find basic testimonial and documentary evidence to be lacking in
this investigation leaving many questions unanswered. For example,
there is no testimony in the record from S2's predecessor explaining the
overtime policy which he allegedly created. In addition, there is no
testimony from any administrative official who allegedly was responsible
for calling employees in for overtime. Moreover, the record does not
include the call-in list before and after complainant's complaint to S2,
nor is there documentation which shows, by racial/color breakdown, which
employees were awarded overtime. Accordingly, we hereby VACATE the FAD
and REMAND the case to the agency for a supplemental investigation in
accordance with our Order below.
Acting Supervisor Rotation
Complainant alleges that he was denied an acting supervisor position
while S1 was on vacation for 2� weeks in September, 1993. Complainant
claims that, according to the collective bargaining agreement, all
temporary assignments to supervisory positions must be equitably rotated.
In addition, he claims that the acting supervisor position was rotated the
prior year. However, it is unclear whether complainant actually served
in an acting supervisor position the previous year. Complainant stated
that S1 explained to him, on August 31, 1993, that he could not fill-in
as acting supervisor while S1 was on vacation because complainant could
not work on the high voltage network due to a previous knee injury.
In response, on September 1, 1993, complainant provided a written
statement to S1 and S2 explaining that he had been rehabilitated
and was capable of working on the high voltage network. The record
indicates that complainant's supervisor "instructed him on testing for
high voltage network." However, this instruction was not explained in
the record. Nor was it explained how being instructed on testing for
high voltage network, justifies the failure to place complainant in the
acting supervisor position. On September 3, 1993, W1 was assigned the
acting supervisor duties, without rotation, for 2 � weeks.
According to the record, a detail of the acting supervisory position must
be equitably rotated among employees whom management believes is capable
of performing the duties of the position. From all accounts, complainant
was capable of performing the acting supervisor position, as long as
he was able to work on the high voltage network. We find the agency's
justification for failing to place complainant in the acting supervisor
position unclear. For example, the agency's response to complainant's
memorandum which advises S1 and S2 that he was able to work on the high
voltage network is unclear from the record. There is no testimony
from S1 or S2 which addresses this issue, including statements as to
whether the position was previously rotated, the procedure for rotation,
and the racial/color breakdown of each employee previously placed in
such position. Accordingly, we hereby VACATE the FAD and REMAND the
case to the agency for a supplemental investigation in accordance with
our Order below.
The merits of complainant's harassment and reprisal claims shall be
addressed with his overtime and supervisory rotation claims following
the completion of the supplemental investigation, since it is likely that
such a supplemental investigation may uncover additional facts relevant
to those issues.
ORDER (D1092)
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
The agency shall provide the identity of all subordinates of S1 and S2
(the identity shall include the race and color of each employee);
The agency shall provide the identity of each employee who had been
called-in and provided overtime during the years 1993 and 1994 (the
identity shall include the race, color and supervisor of each individual);
The agency shall provide the schedule of overtime conducted for each
individual identified above, including specific dates and times;
The agency shall provide all versions of the overtime call-in list in
existence during the years 1993-1994;
The agency shall obtain testimony from all MAOD officials responsible
for placing the calls for overtime;
The MAOD officials testimony shall include an explanation of the call-in
procedure; identity of the individual(s) who created/modified the
procedure; and statements as to whether and when complainant was ever
"called-in;"
The agency shall obtain testimony from S2's predecessor (or any other
official with information) regarding the creation and implementation of
the overtime policy, including an explanation of why certain employees
were not placed on the overtime list;
The agency shall obtain statements from S1 and S2 which explain, in
detail, why complainant was not permitted to fill-in for S1 as acting
supervisor in September, 1993. Specifically, the testimony shall
include: (a) an explanation of how management responded to complainant's
memorandum dated September 1, 1993; (b) an explanation of why, in light of
complainant's memorandum dated September 1, 1993, management nevertheless
failed to approve complainant's request to work as an acting supervisor;
(c) an explanation of the statement by management that complainant was
"instructed on testing for high voltage network" and how that explains
why he was not permitted the opportunity to perform acting supervisory
responsibilities; (d) if such acting supervisory position was rotated
among employees, the identity of employees who were rotated into this
position during the years 1993 and 1994; and (e) a list of the dates
each employee was rotated into an acting supervisory position.
The agency shall provide complainant all information obtained pursuant
to this Order. Following complainant's review of such information,
the agency shall obtain a rebuttal affidavit and any supplemental
documentation from complainant in response to said information.
The supplemental investigation must be completed within ninety (90)
calendar days of the date this decision becomes final. 29 C.F.R. �
1614.108(e). The agency then shall provide complainant with a copy of
the supplemental investigative file. Thereafter, the agency shall issue
a final agency decision within sixty (60) calendar days. A copy of the
agency's notice transmitting the investigative file to the complainant
must be submitted to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
2/15/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999) where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 During the investigation complainant withdrew sex as a basis of
discrimination.