01A23591_r
10-09-2002
Joseph Watts, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Joseph Watts v. Department of Veterans Affairs
01A23591
October 9, 2002
.
Joseph Watts,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23591
Agency No. 200I-2881
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was employed
as a mason in the carpentry shop on a temporary basis at the agency's
VA Medical Center, Miami, Florida. The record reflects that at the end
of his temporary employment, complainant attempted to secure a position
as a housekeeping aide, but was informed that those positions were being
held for applicants that claimed veterans' preference.
Believing that he was the victim of discrimination on the basis of race,
complainant sought EEO counseling and subsequently filed a formal
complaint on December 10, 2000. Complainant claimed that he was
discriminated against on the basis of race when he was not rehired as a
temporary employee while another former employee, who is Caucasian and
also terminated as a temporary employee was rehired by the agency.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination on the basis of race. Further,
the agency found that complainant failed to present any evidence
which demonstrated the agency's articulated reasons for its actions
were pretext for discrimination. In addition, the agency noted that
complainant never applied for any positions within the agency.
The record in this case contains an affidavit dated November 11,
2001, from a Human Resource Specialist. Therein, the Human Resource
Specialist stated that there were no mason (plasterer) positions open
since complainant was terminated from his appointment in March 2000.
The Human Resource Specialist further stated that as a non-veteran,
complainant would have to go to the Delegated Examining Unit in order to
qualify to apply for any permanent position. The record also contains an
affidavit dated November 11, 2001, from a Chief of Facilities Support.
Therein, the Chief stated that there was a need for carpenters and that
the person complainant named was hired back as a carpenter. The Chief
further stated that he informed complainant that he cannot apply for
a position through him and instructed him to go to Human Resources.
Further, in his affidavit dated November 11, 2001, complainant testified
that there were no mason openings following his termination from temporary
employment and that he was not qualified as a carpenter.
The established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. � 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, the Commission finds that the evidence supports a
determination that the agency articulated legitimate, non-discriminatory
reasons for its employment actions. The agency determined that there were
no mason openings following complainant's termination from temporary
employment. The agency noted the former employee complainant named
in his complaint who was also terminated as a temporary employee was
rehired as a carpenter, not as a mason. The agency also determined as a
non-veteran with no record of permanent Federal employment, complainant
was ineligible for the housekeeping aide position. Complainant has not
demonstrate that the agency's articulated reasons for its actions were
a pretext for discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
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
October 9, 2002
__________________
Date