01a53939
10-21-2005
Richard Becker, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Richard Becker v. Department of Veterans Affairs
01A53939
October 21, 2005
.
Richard Becker,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A53939
Agency No. 200R-0632-2004101892
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his formal 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. , Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
During the relevant time, complainant was employed as a Nursing Assistant,
GS-5,at the agency's VA Medical Center in Newport, New York. Complainant
filed a formal complaint on May 29, 2004. Therein, complainant claimed
that he was discriminated against on the bases of sex (male), disability
(heel, knee and back injury), age (D.O.B. 4/4/36), and in reprisal for
prior EEO activity.
On June 18, 2004, the agency issued a document identified as �Notice
of Partial Acceptance and Partial Dismissal.� Therein, the agency
determined that the instant complaint was comprised of ten claims,
that it identified in the following fashion:
(A) over the past six months Nurse Manager had not removed complainant's
sick leave counseling letters, in violation of the union contract;
(B) on June 11, 2003, the Nurse Manager charged complainant with four
hours of absence without leave (AWOL);
(C) on an unspecified date in January 2004, complainant applied for
positions in the Veterans Canteen Service and did not receive a response;
(D) on March 1, 2004, complainant was notified that he was not selected
for the position of Inventory Management Specialist, GS-2010-7/9, under
Vacancy Announcement Number MPA 04-26;
(E) on April 29, 2004, complainant was notified that he failed to
qualify for the position of Health Technician (Hearing), GS-640-6,
under Vacancy Announcement Number MPA 04-21;
(F) on unspecified dates in March or April 2004, complainant responded
to advertisements in Newsday for the position of Nursing Assistant,
Vacancy Announcement Number MPA 04-44 and 04-45;
(G) on unspecified dates in March or April 2004, complainant responded
to advertisements in Newsday for Medical Supply Technician, Vacancy
Announcement MPA 04-42, and did not receive a response from Human
Resources regarding his application;
(H) in January 2004, complainant applied for the position of Medical
Records Technician, GS-675-5/6/7 under Vacancy Announcement Number MPA
04-36, and did not receive a response from Human Resources regarding
his application;
(I) on an unspecified date in January 2004, complainant applied for
the position of Medical Records Technician, GS-679-4/5/6 under Vacancy
Announcement Number MPA 04-37, and did not receive a response from Human
Resources regarding his application; and
(J) on an unspecified date in January 2004,complainant applied for
the position of Patient Relations Assistant, GS-305-5/6/7 under Vacancy
Announcement Number MPA 04-48, and did not receive a response from Human
Resources regarding his application.
The agency accepted claims (D) and (E) for investigation. The agency
dismissed claims (A) and (B) for stating the same claim pursuant to 29
C.F.R. � 1614.107(a)(1), and on the alternative grounds of mootness
pursuant to 29 C.F.R. � 1614.107(a)(5). The agency dismissed claims
(C), (F), (G), (H), (I) and (J) pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim.
At the conclusion of the investigation of claims (D) and (E),
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. Complainant requested that the agency issue a final decision.
In its April 25, 2005 FAD, the agency found no discrimination.
With respect to claim (D), the agency found that complainant
failed to establish a prima facie case of disability and reprisal
discrimination. <1> The agency, however, found that complainant
established a prima facie case of sex and age discrimination because the
four selectees, not in complainant's protected classes, were selected
for the Inventory Management Specialist positions. The agency further
found that it had articulated legitimate, nondiscriminatory reasons
for its non-selection of complainant. Specifically, the agency found
that the four selectees for the subject positions were better qualified
than complainant. Further, the agency found that complainant failed to
present any evidence which demonstrated that management's articulated
reason for its actions was a pretext for discrimination.
With respect to claim (E), the agency found that complainant failed to
establish a prima facie case of disability discrimination. The agency,
however, found that complainant established a prima facie case of sex,
age and reprisal discrimination because the selectee, not in complainant's
protected classes, was considered qualified and selected for the Health
Technician (Hearing) position. The agency further found that it had
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the agency found that complainant was not qualified for
the subject position because he did not meet the specialized experience.
Further, the agency found that complainant failed to present any evidence
which demonstrated that management's articulated reasons for its actions
was a pretext for discrimination.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This 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).
The Commission finds that the agency articulated legitimate,
non-discriminatory reasons for its employment actions. Regarding claim
(D), ten candidates, including complainant, were identified as being
qualified for the position of Inventory Management Specialist, and were
referred to the Selecting Official (SO) for consideration. The SO set
up a panel of two panelists; and instructed the panelists to interview and
score the candidates, including complainant. Following the interviews,
the panelists submitted their recommendation of the top four candidates
to the SO. The record reflects that the SO selected all four recommended
candidates for the subject positions.
The record contains an affidavit from one of the two panelists (P1).
Therein, P1 stated that he and the other panelist (P2) were looking for
candidates that "were in the computer realm such as knowledge of e-mail,
IFCAP, GIP, credit card use and other systems like that." P1 further
stated that he and P2 recommended four top scoring candidates for the
subject positions because they "had demonstrated knowledge of personal
computers, the GIP inventory system, the IFCAP system." P1 stated that
he and P2 did not recommend complainant because he did not possess the
requisite skills for the subject position. P1 stated that while he did
not keep the scores of the candidates from the interviews, he recalled
that complainant's score "was very, very low based upon his responses."
Furthermore, P1 stated that complainant's sex, disability, age and prior
protected activity were not factors in the panel's determination not to
recommend him for the subject position.
The record further contains an affidavit from P2. Therein, P2 stated that
the four top scoring candidates were recommended for the subject positions
because they had extensive knowledge of IFCAP/GIP, government credit
card procedures. P2 further stated that complainant was not recommended
for the subject position because he "was not familiar and knowledgeable
regarding internal computer fundamentals regarding IFCAP and GIP."
P2 stated that while he does not recall complainant's score, complainant
"was very close to the bottom, if not at the bottom." Furthermore,
P2 stated that complainant's sex, disability, age and prior protected
activity were not factors in the panel's determination not to recommend
him for the subject position.
Regarding claim (E), the record reflects that eleven candidates, including
complainant, applied for the position of Health Technician (Hearing); and
were found not qualified. The record further reflects that the agency
hired a candidate from outside of the agency for the subject position.
The record contains an affidavit from the Human Resources Specialist
(S1). Therein, S1 stated that she reviewed complainant's application
package for the position of Health Technician (Hearing), GS-640-6,
and found him not qualified. Specifically, S1 stated that complainant
"lacked required one year of specialized experience." S1 stated that she
followed the AFGE contract, Article 22, in filling the subject position.
Furthermore, S1 stated that complainant's sex, disability, age and prior
protected activity in finding complainant not qualified for the subject
position.
The record contains an affidavit from a different Human Resources
Specialist (S2). Therein, S2 stated that duties for the subject position
are as follows: "assessment of hearing aids; installing batteries;
checking for proper operation; inserting hearing aids into patients'
ears; teaching patients to perform these activities without assistance;
assisting in the daily care of patients related to their treatment
for hearing impairment; assessment of hearing aids status; monitoring
patients for problems related to the hearing aids; measuring, fitting,
modifying all types of custom-made hearing applicants for a complex
level of patients." S2 further stated that because complainant did not
meet the 1-year specialized experience, he was not qualified for the
subject position. Further, S2 stated that there was no record indicating
that complainant had handled any of the duties for the subject position
"based on the duties that are listed in his position description and he
has given us no information whatsoever to indicate that he has performed
such duties."
We find that complainant has not demonstrated that the agency's
articulated reasons for its actions, as discussed above, were a pretext
for discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
Claims (C), (F), (G), (H), (I) and (J)
In a partial dismissal dated June 18, 2004, the agency dismissed claims
(C), (F), (G), (H), (I) and (J) pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim, finding that complainant was not aggrieved
and suffered no harm.
Regarding claim (C), the agency noted that in response to the EEO
Officer's June 4, 2004 request for clarification of his claims,
complainant submitted a copy of Promotional Opportunity announcement
dated January 2, 2004, wherein he underlined the term �Canteen Officers,
Assistant Canteen Officers and Assistant Canteen Officer Trainees.� The
agency noted that a review of the promotional opportunity announcement
indicated that employees in excepted service positions, including those
in the Veterans Canteen Service, may apply for the competitive service
positions listed in the announcement. The agency found that although
complainant asserted that he applied for positions in the Veterans
Canteen Service, the Veterans Canteen Service stated that there were no
advertised positions within their division in January 2004, and that they
did not receive complainant's application package. Further, the agency
determined that complainant did not apply for the subject position and
therefore was not aggrieved.
Regarding claims (F), (G), (H) and (I), the agency found that Human
Resources Northport Medical Center (Northport VMAC), indicated that
there was no record of any Newsday advertisements for the positions
identified in these claims during the relevant time period. The agency
further found that the Human Resources Northport VAMC did not receive
complainant's application package for any of the above mentioned
positions. The agency also determined that complainant did not apply
for the subject positions and therefore was not aggrieved.
Regarding claim (J), the agency found that according to Human Resources
Northport VMAC, complainant submitted an application package for the
position of Patient Relations Assistant, GS-5/6/7. The agency further
found that according to Human Resources department, the subject position
was an �open continuous� announcement, that is, any interested party
could apply for the position in which they were interested and once
the job was announced, the application packages would be considered.
The agency found that the Human Resources department stated that it
did not advertise the subject position during the relevant time period.
Consequently, the agency determined that complainant was not aggrieved.
After a review of the record, we find that complainant failed to
specify any personal loss or harm that he suffered with respect to
a term, condition or privilege as a result of the alleged incidents.
The agency properly dismissed claims (C), (F), (G), (H), (I) and (J)
for failure to state a claim.
Claims (A) and (B)
Regarding the dismissal of claims (A) and (B) on the grounds of
mootness, the agency determined that because complainant's counseling
letters were removed and his 4 hours of AWOL was rescinded, it could
be said with reasonable certainty that the actions set forth in claims
(A) and (B) were not likely to recur. Specifically, the agency stated
that complainant submitted a memorandum dated May 24, 2004, from Nurse
Manager concerning claim (A). Therein, the Nurse Manager stated that she
removed all materials from her office folder concerning complainant that
were more than 6 months old. The agency further stated that the Nurse
Manager's May 24, 2004 memorandum was also issued to the EEO Manager,
the Associate Director for Nursing Service, and complainant's union
representative. As to claim (B), the agency stated that complainant
submitted a copy of an undated e-mail message from the Nurse Manager
wherein she stated that she rescinded complainant's four hours of AWOL
that she charged him on June 11, 2003.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues in complainant's complaint are moot,
the fact finder must ascertain whether: (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); Kuo v. Department of the Navy,
EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist,
no relief is available and no need for a determination of the rights of
the parties is presented.
The Commission determines that claims (A) and (B) have been rendered moot.
Specifically, the Commission determines that the removal of complainant's
counseling letters from the official personnel file (claim (A)); and
the rescission of his four hours of AWOL (claim (B)) have completely
and irrevocably eradicated the effects of the alleged discrimination;
and that it can be said with assurance that there is no reasonable
expectation that the alleged violations will recur. The Commission notes,
moreover, there was no indication in the record that complainant requested
compensatory damages as a remedy. Therefore, we find that the agency
properly dismissed claims (A) and (B) on the grounds of mootness.
Because we affirm the dismissal of claims (A) and (B) for the reason
stated herein, we find it unnecessary to address alternative dismissal
grounds.
Accordingly, the agency's dismissal of claims (A), (B), (C), (F), (G),
(H), (I), and (J) 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 21, 2005
__________________
Date
1The Commission presumes, for purposes of
analysis only and without so finding, that complainant is an individual
with a disability.