01976880
02-11-2000
Tej T. Emanuel, Complainant, v. David J. Barram, Administrator, General Services Administration, Agency.
Tej T. Emanuel v. General Services Administration
01976880
February 11, 2000
Tej T. Emanuel, )
Complainant, )
) Appeal No. 01976880
v. ) Agency No. 96-R4-PBS-TTE-14
)
David J. Barram, )
Administrator, )
General Services Administration, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the bases of race (Black), reprisal (prior EEO activity), and mental
disability (Post-Traumatic Stress Disorder), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et
seq.<1> Complainant alleges he was discriminated against when: (1) on
August 30, 1996, he was removed from his position; and (2) his service
computation date (SCD) was inaccurately listed in his record, which had
a negative impact on his pay and leave benefits. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Custodial Work Inspector, WG-3566-05, at the agency's Miami,
Florida facility. Complainant alleged that he was issued a Notice of
Proposed Removal on March 23, 1996, based on the allegation that he drove
Government Owned Vehicles (GOV) while his driver's license was suspended.
He was issued an amended Notice of Removal on June 7, 1996, which also
added the allegation that he had engaged in disorderly conduct when he
allegedly yelled at one of the agency's contractors. Complainant also
alleged that his service computation date was erroneously listed in his
records, which caused his denial of "equal" pay and benefits.<2>
With respect to the removal charges, complainant averred that he was
unaware that his license had been suspended during the time that he
had operated GOVs. Rather, he maintained that on January 30, 1996,
his supervisor requested that he bring his license in to be verified.
According to complaint, when he looked at his license, he noticed it
had expired on December 1, 1995. Therefore, complainant immediately had
it renewed that day. Complainant also denied the charges of disorderly
conduct alleged by an agency contractor.
Complainant also averred that he was hospitalized from September 13,
1993 until February 2, 1994, for treatment for a substance abuse problem
and for Post-Traumatic Stress Disorder due to injuries he sustained
during the Vietnam War. Complainant alleged that the agency denied him
a reasonable accommodation of sick leave during his hospitilization.
Specifically, he maintained that had his service computation date been
correct, he would have been able to take sick leave instead of Leave
Without Pay for the period of his hospitalization.
Complainant alleged that his second line supervisor wanted him removed
due to his prior EEO activity, and race discrimination. Specifically,
complainant alleged that his supervisor called him a "ni---r", often
referred to him as "boy", and also condoned such behavior in others.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on April 18, 1997.
At the conclusion of the investigation, complainant requested that the
agency issue a final agency decision.
The Final Agency Decision
The FAD concluded that complainant failed to establish a prima facie case
of discrimination on the bases of disability or reprisal, but that he
had raised an inference of discrimination with respect to his race claim.
Specifically, the agency found that complainant had failed to show that
agency officials were aware of his prior EEO activity when they issued
the Notice of Removal.
The agency did find that it was aware that complainant had Post-Traumatic
Stress Disorder, and had been hospitalized for "poly-substance
dependence", including alcohol, marijuana and cocaine use. The agency
also found that complainant had not been denied an accommodation for his
disability. Specifically, although complainant claimed that the agency
denied him sick leave because it inaccurately determined his SCD, the
agency found that complainant had been provided Leave Without Pay when
his sick leave balance was at zero, as an accommodation. The agency also
found that even if complainant's SCD had been correct, he would not have
had enough sick leave to cover his absence during his hospitalization.
Assuming, arguendo, that complainant had established an inference of
discrimination, the agency found that it had articulated legitimate,
nondiscriminatory reasons for its actions, which complainant had failed
to show were a pretext for discrimination.
Suspended License
Specifically, the agency found that on January 30, 1996, complainant's
supervisor requested that all employees who drove GOVs produce their
driver's license in order so that he could check them. According to
the supervisor, all who were present that day, except complainant,
produced their license immediately upon request. When complainant
ultimately produced his driver's license at the end of the day, the
supervisor noticed that complainant's license had been renewed that day.
When he questioned complainant about the license, complainant told him
that his license must have expired on his birthday. According to the
supervisor's affidavit, he believed that complainant committed a serious
offense by allowing his license to expire while operating GOVs.
The supervisor averred that the seriousness of the offense was magnified
after he requested the Federal Protective Service to conduct a search
of complainant's drivers record. At that time, the supervisor was
notified that complainant's license had not expired, but had actually
been suspended twice for failure to pay insurance. Therefore, after
reviewing the sign out logs for the GOVs, the supervisor determined that
complainant had used GOVs while operating under a suspended license.
After consulting the agency's penalty guide and complainant's second
line supervisor, he issued the removal action.
Disorderly Conduct Charge
With respect to the disorderly conduct allegation that also led to
complainant's removal, the supervisor averred that in early 1996,
he received a telephone call from a supervisor of one of the agency's
contractors. During that call, complainant's supervisor was notified
that complainant screamed, yelled, and made threats of violence against
one of the contractors. Therefore, complainant's supervisor determined
that the threats were sufficient to recommend complainant's removal.
With respect to complainant's allegation that the agency miscalculated
his SCD, complainant's supervisor averred that to the best of his
knowledge, the issue had been addressed to, and resolved by, Personnel.
According to the supervisor, even if complainant's SCD been correct, it
would not have provided enough sick leave to cover complainant's absence.
The FAD concluded that complainant failed to prove that the agency's
reasons for its actions were a pretext for discrimination. Although
complainant presented evidence that a comparative employee (white, no
disability, no prior EEO activity) was not removed when he operated a
GOV while on a suspended license, the agency found that complainant
and the individual were not similarly situated. Specifically, the
comparative worked for another supervisor and at a different location.
Furthermore, complainant had not produced any documentary evidence that
the comparative operated a GOV while on a suspended license.
Neither the agency nor complainant has filed contentions on appeal.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981), and Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases), we note that complainant raised sufficient
evidence which would establish a prima facie case of discrimination on
all bases. We find, after a review of the record, that complainant's
second line supervisor was aware of complainant's prior EEO activity.
We also note that the agency does not dispute that complainant has an
impairment which substantially limits a major life activity, PTSD.
The Commission also finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that the record is clear that complainant's license was suspended
for two periods, November 24, 1993 - March 15, 1994, and May 3, 1995 -
January 29, 1996.
Although complainant maintained that he was hospitalized during the
period in which his license was suspended and that others were managing
his affairs, we find that complainant was hospitalized only during most
of the period encompassing his first suspension, rather than during the
second license suspension. Moreover, after a review of the agency's
leave records and sign out logs, we find support for the agency's
position that complainant signed out GOVs during the time which his
license was suspended.
Although complainant contends that he did not know that his license was
suspended because he did not receive his renewal notice, we find he has
failed to show that the agency removed him based on a discriminatory
motive. We also note that complainant failed to produce sufficient
evidence that the comparative cited was not removed even though he had
operated a GOV under circumstances which were similar to complainant's.
Furthermore, we find that the record supports the agency's contention
that complainant acted inappropriately during an inspection with one
of the its contractors. Specifically, complainant has not provided
sufficient evidence, such as witness statements, which would show that
the agency's reasons for its actions in this regard are not credible.
With respect to complainant's allegation that his SCD was inaccurately
recorded, we find he has provided insufficient evidence which proves
that this was based on unlawful motives. Specifically, although one
individual testified that he heard an individual, not in complainant's
chain of command, use the racial slur indicated above, he does not know
to whom he was referring. Complainant's supervisor also categorically
denied using the words alleged by complainant. Although the Commission
strongly condemns the use of such language, complainant has failed
to show that the comment was directed towards him, by his supervisor,
and was made in connection with the allegations at issue herein.
Although complainant averred in his affidavit that he was denied an
accommodation during his hospitalization, the agency did not accept
this as an issue for investigation. However, we find that the agency
did provide complainant with Leave Without Pay, in lieu of sick leave,
while he was hospitalized. Complainant has not provided any statement
as to what other accommodation he requested but was not provided.
CONCLUSION
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
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 (S1199)
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:
February 11, 2000
__________________________________
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On 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.
2Complainant averred that he does not allege sex based wage
discrimination.