01a41399
04-27-2005
Ricky R. Smith, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Ricky R. Smith v. Department of Veterans Affairs
01A41399
April 27, 2005
.
Ricky R. Smith,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A41399
Agency No. 200P-0691-981825
Hearing No. 340-A2-3522X
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision dated November 4, 2003, 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
At the relevant time, complainant was a Patient Services Assistant,
GS-5, in the Nursing Service, in the VA Greater Los Angeles Healthcare
System in West Los Angeles, California. Believing that he was a victim of
discrimination, complainant contacted the EEO office on February 23, 1998.
Informal efforts to resolve complainant's concerns were unsuccessful.
On March 20, 1998, complainant filed a formal complaint claiming that
the agency had discriminated against him on the bases of race (black),
sex (female), and disability (mental/physical) when:
Duty Hours
(1) From November 1996 through January 28, 1998, management scheduled
him to work back-to-back shift rotations, i.e., he would work the
3:30 p.m. to midnight tour of duty, and then be required to report
back at 7:30 a.m. to start a new shift;
(2) From approximately April 1997 through August 1997, management
failed to inform complainant of the change/increase in break times
from 10 minutes to 15 minutes;
Time and Attendance
(3) From approximately August 1997 through January 1998, when
complainant was required to bring in medical documentation for his
absence, it would not be accepted, and he would then be charged Absent
Without Leave (AWOL);
Training
(4) From November 1996 through January 1998, management failed to
provide complainant with any training for his job;
(5) In February 1997, complainant was pulled out of a training class
15 minutes after it started, and never allowed to complete the class;
Working Conditions
(6) From November 1996 through January 1998, complainant was required
to sign in and sign out when he went to the restroom, and he had to
dig through the trash in the emergency room;
Harassment
(7) From November 1997 to January 28, 1998, complainant's former
supervisor, MP, told complainant's new supervisor, PT, to let her know
where complainant was at all times, to monitor his breaks and those
occasions when he went to the restroom; and to tell her whether he
was doing his work in a timely manner;
(8) On January 7, 1998, while he was on detail, complainant's former
supervisor (MP) told complainant's supervisor (PT) to tell complainant
that he was to report to MP's office on January 20, 1998;
Removal
(9) On January 28, 1998, complainant was removed from his employment.<1>
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, on September 15,
2003, the AJ issued a decision dismissing claims (1) through (6) on
the grounds of untimely EEO Counselor contact. Regarding claims (7)
and (8), the AJ determined that complainant failed to establish a prima
facie case of discrimination because he did not set forth any comparative
evidence to demonstrate disparate treatment, and that he did not present
any evidence upon which to infer that the actions of a supervisor (MP),
in monitoring complainant's activities and requesting that complainant
report to him, were discriminatory. The AJ noted in his finding of
facts that MP stated that although complainant was on detail, MP was
still his supervisor, and that the monitoring program was in place for
all employees. The supervisor also stated that he wanted to assure that
complainant was in compliance with the Last Chance Agreement.
The AJ also determined that concerning the claim of removal (9),
complainant failed to establish a prima facie case of discrimination
because complainant failed to present evidence of a similarly situated
individual, who was in a last chance agreement, who committed an act
that violated a last chance agreement, and who was not removed. The AJ
concluded that complainant's threat of violence to a management official
violated the last chance agreement which resulted in complainant's
removal.<2>
Claims (1) through (6)
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Regarding claims (1) - (6), complainant contacted the EEO Counselor well
beyond the forty-five-day limitation. With regard to claim (1), the AJ
noted that although complainant claimed that the back-to-back scheduling
occurred through January 1998, the record reflected that the practice
ended in July 1997. Regarding claim (3), the AJ noted that the record
reflected AWOL charges only through September 1997. Regarding claim
(6), the AJ noted that the final alleged discriminatory event occurred
in September 1997. Complainant did not provide any justification for
extending or tolling the forty-five-day time limit. Therefore, we find
that the final order implementing the AJ's dismissal of claims (1) -
(6) was proper pursuant to 29 C.F.R. � 1614.107 (a)(2).
Claims (7) through (9)
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.
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, he 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).
Concerning claims (7) and (8), the AJ determined that complainant
failed to establish a prima facie case of discrimination on any bases.
Furthermore, the record supports a determination that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
Supervisor (MP) asserted that complainant had to report to her while
he was on detail because she was still his supervisor. MP also
asserted that the monitoring program was in place for all employees,
and that she wanted to be sure that complainant was in compliance with
a Last Chance Agreement. The Commission determines that complainant
failed to present evidence that the agency's actions were motivated by
discriminatory animus.
Regarding claim (9), the AJ determined that complainant failed to
establish a prima facie case of discrimination. The AJ also found
that complainant's removal was based on complainant's threats about
hurting his supervisor in violation of his Last Settlement Agreement.
The Commission finds that complainant has not shown pretext. There is no
evidence that complainant's job was terminated for discriminatory reasons.
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
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies and laws. We discern
no basis to disturb the AJ's decision. Therefore, we AFFIRM the agency's
final order, implementing the AJ's finding of no discrimination.
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
April 27, 2005
__________________
Date
1The Commission notes that it has re-numbered
the claims in a fashion differently from that employed by the AJ in
her decision.
2The Commission will presume, for purposes of analysis only and without
so finding, that complainant is an individual with a disability.