Robert H. Pierson Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
01973778 (E.E.O.C. Feb. 15, 2000)

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.