Douglas F. Coffey, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 21, 2001
01993107 (E.E.O.C. Dec. 21, 2001)

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.