01a00032
09-08-2000
Willie C. Wells, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Willie C. Wells v. Department of Veterans Affairs
01A00032
September 8, 2000
.
Willie C. Wells,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A00032
Agency No. 98-4563
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was retaliated
against because of his prior EEO activity when on July 12, 1998, he was
told that he was accountable and responsible for the unfinished work
of the substitute or relief workers from the Compensated Work Therapy
(CWT) program who were assigned to his work area while he was off duty.
The record reveals that during the relevant time, complainant was employed
as a Housekeeping Aide, WG-2-5, at the agency's Tuscaloosa, Alabama
medical center facility. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on August 14, 1998. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. Complainant requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant was not retaliated
against in that he was not responsible for cleaning the facilities during
his scheduled absences, but that he was responsible for doing so upon his
return. Furthermore, the agency determined that it was reasonable to hold
permanent employees such as complainant and CWT patients to different
standards, because permanent employees were regular employees of the
medical center and CWT patients were patients undergoing rehabilitation.
Therefore, holding CWT patients to a lower standard did not amount to
disparate treatment or retaliation.
On appeal, complainant contends that when he takes leave and the CWT
patients do not clean properly in his absence, it amounts to harassment,
as an extra physical strain is placed on complainant. The agency requests
that we affirm its FAD.
Although the agency expressed doubts that complainant had established a
prima facie case of retaliation, it noted that since it had articulated
legitimate, nondiscriminatory reasons for its action, whether complainant
actually made out such a case becomes irrelevant under United States
Postal Service v. Aikens, 460 U.S. 711, 715 (1983), as there was enough
evidence available to make a decision on the merits of the complaint.
The Commission 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 it is a prerogative of management to set policies and carry out
personnel decisions, which should not be second-guessed by a reviewing
court or administrative tribunal absent evidence of unlawful motivation.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Hence, we find that the agency was within its rights to set
different standards for complainant as a permanent employee and the CWT
patients as substitute or relief workers undergoing rehabilitation. Thus,
we also find that the agency was within its rights to remind complainant
that he was accountable and responsible for the unfinished assignments
of the CWT patients.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
_____________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 8, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.