01970388
05-13-1999
Earl Annable, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Earl Annable v. Department of Veterans Affairs
01970388
May 13, 1999
Earl Annable, )
Appellant, )
) Appeal No. 01970388
v. ) Agency No. 95-1738
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges that he was discriminated against on the bases of race
(White), sex (male) and in reprisal for prior EEO activity when he was:
(1) harassed in November 1993; (2) charged with AWOL in January 1994; and
(3) not selected for the position of G.U. Case Manager in April 1994.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that appellant was employed as a Registered Nurse
at the agency's VA Medical Center in Chicago, Illinois. Believing he
was a victim of discrimination, appellant sought EEO counseling and
subsequently filed two complaints; the first on March 18, 1994, and the
second on April 25, 1994.<1> At the conclusion of the investigation,
appellant initially exercised his right to a hearing before an EEOC
Administrative Judge but subsequently withdrew his request and opted for
a FAD on the evidence of record. On July 29, 1996, the agency issued its
final decision, finding no discrimination based on race, age or reprisal.
It is from this decision that appellant now appeals.
The FAD held the following:
(1) regarding the allegation of harassment by his supervisor, appellant
failed to prove harassment under Title VII because there is no evidence
that his supervisor used racially derogatory or gender-based comments
directed at him or that she treated appellant any differently from other
employees;
(2) regarding appellant's allegation of being charged with AWOL, the
allegation is moot since the AWOL was rescinded, the hours in question
were restored, and appellant no longer works for the VA; and
(3) regarding his non-selection, appellant failed to establish a prima
facie case of race discrimination because the selectee was of the same
race as appellant; and although appellant did establish a prima facie case
of sex and reprisal discrimination, the agency articulated a legitimate,
nondiscriminatory reason for its non-selection of appellant, namely
that the selectee had certain skills, including conflict management,
which were superior to appellant's skills.
While appellant offers no new contentions in support of his appeal,
he specifically states that "he never wanted a monetary settlement."
The agency did not submit a statement on appeal.
Appellant's complaint of unlawful discrimination constitutes a claim of
disparate treatment which is properly analyzed under the three tiered
analytical framework outlined in McDonnell Douglas v. Green, 411 U.S. 792
(1973). See also 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).
In regard to appellant's allegation that his supervisor harassed him,
the Commission agrees with the agency that appellant failed to prove that
his supervisor's conduct constituted harassment in violation of Title
VII because there is no evidence that his supervisor made racially
derogatory or gender based remarks. Appellant may only establish
harassment under Title VII if the conduct complained of is so severe or
pervasive to create a hostile work environment based on race and sex.
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). The substance
of appellant's allegation is that his supervisor would intermittently
interfere with patient care in so far as she would remind appellant to do
basic duties. Appellant alleges that this interference, to which other
employees were subjected, was unnecessary, coarse, and in poor taste.
While his supervisor's conduct may have offended appellant, there is no
evidence in the record to support a finding that her actions constituted
harassment or that they were motivated by a discriminatory animus.
In regard to appellant's AWOL allegation, the Commission also agrees with
the agency that the allegation is moot. EEOC Regulation 29 C.F.R. �
1614.107(e) provides for the dismissal of an allegation when the issue
raised therein is moot. An issue is moot if: (1) it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). In the
instant case, appellant alleges that some employees were allowed to report
as sick or late without consequence, but that others would be charged with
AWOL. However, the record establishes that appellant's AWOL charge was
rescinded, the hours in question were restored, and appellant no longer
works for the agency.<2> Furthermore, appellant specifically stated
on appeal that he is not asking for compensatory damages, and there is
no objective evidence in the record to suggest that he incurred them.
Since the possibility of an award of compensatory damages does not
exist, we dismiss appellant's AWOL allegation pursuant to 29 C.F.R. �
1614.107(e).
In regard to appellant's non-selection, the Commission also agrees
with the agency that appellant failed to establish a prima facie case
of racial discrimination because the selectee was of his same race,
and that although appellant did establish a prima facie case of sex and
reprisal discrimination, he failed to prove that the agency's legitimate,
nondiscriminatory reason for not selecting appellant was a pretext for
either sex or reprisal discrimination.
The record establishes that appellant's interview was unsatisfactory
and that the qualities sought for the position of G.U. Case Manager were
stronger in the selectee than in appellant.
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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
May 13, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Appellant's first complaint was based on race and sex. The second
complaint, concerning his non-selection was based on race, sex and
reprisal for filing the first complaint. The agency consolidated the
two complaints for processing.
2 There is no evidence in the record to establish that appellant's May
24, 1994 resignation was involuntary.