James E. Miller, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 30, 2005
01a51268 (E.E.O.C. Mar. 30, 2005)

01a51268

03-30-2005

James E. Miller, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


James E. Miller v. Department of Veterans Affairs

01A51268

March 30, 2005

.

James E. Miller,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A51268

Agency No. 200L-0623-2003102524

Hearing No. 310-2004-00314X

DECISION

Complainant timely initiated an appeal from the agency's final order

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. The appeal

is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission AFFIRMS the agency's final order.

The record reveals that at the relevant time, complainant was a Day

Shift Work Leader at the VA Medical Center in Muskogee, Oklahoma.

Complainant filed a formal EEO complaint on May 28, 2003, alleging that

the agency discriminated against him on the bases of race and color

(Black) and in reprisal for prior EEO activity when:

(1) On April 22, 2003, the Chief of Engineering Service told complainant

to return his keys while the Work Leaders in Engineering Service were

allowed to keep their keys;

On June 11, 2003, complainant's tour of duty was changed from working

on weekends to working Monday through Friday;

On June 11, 2003, complainant was no longer assigned to Work Leader

duties; instead he was assigned Housekeeping Aide duties; and

On August 16, 2003, complainant's work assignments were changed to

prevent him from working overtime and denying him overtime.

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.

As to issues (1) and (4) the AJ concluded that complainant was not

aggrieved. Specifically, the AJ found that as to (1), complainant never

in fact had to turn in his keys, despite the initial directive to do so.

The AJ further found that complainant failed to establish a prima facie

case of reprisal as to issue(1) because there was no causal connection

between the challenged action and complainant's prior EEO activity.

The AJ noted that complainant did not show that his supervisor was

aware of his prior EEO activity at that point in time. As to (4),

the AJ found that complainant was not aggrieved as he did not have any

entitlement to working with the night crew during this overtime period.

The AJ further found that the supervisor in charge had the prerogative

to adjust the assignments in order to meet the goal of preparing the

facility for an upcoming inspection. The AJ also found as to issue (4),

that complainant failed to establish a prima facie case of disparate

treatment because he did not identify any similarly situated individual,

not in his protected class, who was treated more favorably.

As to issue (2), the AJ found that complainant failed to establish a prima

facie case of disparate treatment because a similarly situated employee

(C1) was treated in the same manner. As to issue (3), the AJ again

found no prima facie case because C1 was treated in the same manner.

The AJ noted that the evidence showed that both complainant and C1 were

considered work leaders who also had to perform housekeeping duties.

The AJ further found that the agency articulated legitimate,

nondiscriminatory reasons for its actions; namely, as to issue (1), the

Service Chief (S1) stated that he had received a suggestion from one of

his supervisors that in order to improve control over the keys on the day

shift, the housekeeping personnel should turn in their keys at the end

of the shift. S1 agreed with the suggestion and issued the directive.

After complainant voiced disagreement, S1 reconsidered and withdrew

the directive. As to issue (2), the AJ found that S1 stated that the

change in schedule was to better adjust personnel to the needs of the

facility. As to issue (3), the AJ found that management notes that the

challenged-action did not change complainant's title, pay or work leader

responsibilities. As to issue (4), complainant's supervisor attempted

to assign complainant to other work because there were already sufficient

employees assigned to buffing floors, however complainant refused. The AJ

then found that complainant failed to prove that the agency's reasons

were pretextual. The agency's final order implemented the AJ's decision.

Complainant makes no new contentions on appeal, and the agency requests

that we affirm its final order. 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).

An AJ's conclusions of law are subject to a de novo standard of review,

whether or not a hearing was held.

After a careful review of the record, the Commission finds that the AJ's

findings of fact are supported by substantial evidence in the record.

We conclude 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 or color. 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 order.

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:

March 30, 2005

______________________________ __________________

Carlton M. Hadden, Director Date

Office of Federal Operations