01993107
12-21-2001
Douglas F. Coffey, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Douglas F. Coffey v. Department of Veterans Affairs
01993107
December 21, 2001
.
Douglas F. Coffey,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01993107
Agency No. 97-1747
Hearing No. 340-98-3458X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) 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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleges he was discriminated against
on the bases of race (Caucasian), religion (Christian), disability (lung
condition, psychosis), and in reprisal for prior protected EEO activity
(initiating EEO counselor contact) when:
(1) he was subjected to harassment and disparate treatment on numerous
occasions, including February 29, 1996;
on March 21, 1996, he received an admonishment from the chief of
Acquisition and Material Management Services (AMMS); and
on April 12, 1996, he was discharged from his position during his
probationary period.
For the following reasons, the Commission affirms the agency's final
decision.
The record reveals that during the relevant time, complainant was a
probationary employee, serving as a Supply Technician in the Personal
Property Management Section of the AMMS at the agency's West Los Angeles,
California, facility. Complainant filed a formal EEO complaint with
the agency on June 5, 1996, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision finding no discrimination.
The AJ initially concluded that complainant failed to establish a prima
facie case of discrimination on any basis with respect to the allegation
of harassment and disparate treatment. Specifically, as to the claim
of harassment, the AJ found that complainant failed to demonstrate that
the actions alleged were so severe or pervasive as to rise to the level
of actionable discrimination. The AJ further found that the testimony
of complainant's co-workers and agency management officials did not
support complainant's version of events, and suggest that complainant
may have been more harasser than harassed. With respect to complainant's
allegation of disparate treatment, the AJ found that complainant failed
to show that he was singled out for discipline and that others within
his office were also counseled by management.
With regard to the March 21, 1996, admonishment, the AJ concluded
that assuming, arguendo, complainant established a prima facie case
of race, religion, disability and reprisal discrimination, the agency
articulated legitimate non-discriminatory reasons for its actions which
complainant failed to show were pretextual. The agency states that the
letter of counseling was issued to complainant as a result of a lack
of improvement in complainant's conduct, despite his being verbally
counseled on numerous occasions. The AJ found this explanation was
supported by testimony and the evidence of record, and that complainant
adduced no persuasive evidence to show that the issuance of the letter
of counseling was based on retaliatory or discriminatory animus.
Finally, with regard to the discharge of April 12, 1996, the AJ found that
the agency articulated a legitimate, non-discriminatory reason for its
actions. The record reflects that complainant falsified information on
his Declaration of Federal Employment (DFE), and that such a falsification
is justification for a discharge from employment. The AJ found that
complainant adduced no persuasive evidence that this reason was mere
pretext, and there was no evidence that any other probationary employees
had been retained under similar circumstances. The AJ noted that though
complainant argued that the inaccuracies on his DFE were unintentional,
and provided explanations for the errors, he failed to show that the
discharge was based on retaliatory or discriminatory motive.
The agency's final decision implemented the AJ's decision. On appeal,
complainant contends the AJ erred in finding no discrimination.
In support of this contention, complainant calls into question the
credibility of the witnesses, and the impartiality and fairness of the
AJ and the proceedings.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). We note that complainant argues on appeal
that the AJ was biased and did not conduct a fair and impartial hearing.
An AJ, however is allowed broad discretion in the conduct of a hearing
and the record before us does not suggest that the AJ's discretion was
abused in any way in this case. See Malley v. Department of the Navy,
EEOC Appeal No. 01951503 (May 22, 1997).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. Even assuming that
complainant was an individual with a disability, we find that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race, religion, or disability.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
December 21, 2001
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.