Tej T. Emanuel, Complainant,v.David J. Barram, Administrator, General Services Administration, Agency.

Equal Employment Opportunity CommissionFeb 11, 2000
01976880 (E.E.O.C. Feb. 11, 2000)

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.