01A12174
06-20-2002
Ronald L. Zundell, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Ronald L. Zundell v. Department of Veterans Affairs
01A12174
June 20, 2002
.
Ronald L. Zundell,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A12174
Agency No. 2000547
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. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Voucher Examiner/Claims Clerk, GS-998-06, at the agency's
Business Service, Fee Basis Unit at the Veterans Administration Medical
Center (VAMC) in Reno, Nevada. Complainant sought EEO counseling and
subsequently filed a formal complaint on March 20, 2000, alleging that
he was discriminated against on the bases of his sex and reprisal (for
prior EEO activity under Title VII) when he was denied an upgrade in
his position while others in the area were upgraded.<1>
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 based on sex because he failed to name
any similarly situated individual who was treated more favorably. The FAD
noted that the female employees named by complainant as having received
upgrades held different positions than complainant, and therefore,
are not comparable for purposes of establishing the requirements of a
prima facie case. The FAD also found that the agency had legitimate,
nondiscriminatory reasons for denying complainant's request for an
upgrade, and complainant failed to show by a preponderance of the evidence
that these reasons were pretext for sex and/or reprisal discrimination.
On appeal, complainant contends that the work he was doing warranted
an upgrade, however, he was not upgraded because of management's
discriminatory and retaliatory animus toward him. He reiterates his
contention that he was the only �lead� in the medical center who held
the same grade level as a �non-lead� in the unit. Complainant further
contends that the males all worked outside the main office, and held the
�dead end� jobs, while the �women who socialized together worked in the
main office and were given promotions.� Complainant additionally asserts
his belief that if one is a friend or relative of certain managers,
one's �chances of advancing are much higher than someone who just goes
to work every day and does the best job they know how.� Complainant
also asserts that he has experienced damaged emotional health and self
esteem due to the treatment he received from his managers. The agency
requests that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). Applying the standards set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); and Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to reprisal cases), the Commission agrees with the agency that
complainant failed to establish a prima facie case of sex and reprisal
discrimination because he failed to show that he was accorded treatment
less favorable from the treatment accorded similarly situated employees
not of the same protected groups. In reaching this conclusion, we note
complainant's assertion that his named comparators hold the position of
Accounting Technician which differs from his position in the following
ways: it requires the performance of different duties and has a higher
grade schedule than does the Voucher Examiner/Claims Clerk position.
See Record of Investigation (ROI), Affidavit B1, p. 6-7.
Even assuming arguendo that complainant established a prima facie case
of sex and reprisal discrimination, we find that the agency articulated
legitimate, nondiscriminatory reasons for its action. Specifically,
complainant's supervisor (S1) states that in order to be upgraded one
must have three subordinates, and complainant had only two. ROI at B2,
p. 6. Additionally, S1 asserts that one is required to be a budget
analyst in order to receive an upgrade, and complainant did not have
this role. ROI at B2, p. 7. Finally, she states that the automated
CO-HO system classified complainant's duties as GS-6. Id. Even assuming
that complainant was in fact, performing duties that were of a higher
grade than those contained in his position, we are not persuaded by a
preponderance of the evidence that the agency's refusal to upgrade him
was motivated by an intent to discriminate against him because of his
sex or prior EEO activity.
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 FAD.
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
June 20, 2002
__________________
Date
1 Complainant also alleged, in his formal complaint, that he was
subjected to harassment in 1995. However, the agency determined that
the claim relating to harassment was subject to dismissal, either because
complainant failed to raise it before an EEO counselor and it was not
�like or related� to a claim raised before the EEO counselor or because
it failed to state a claim. See 29 C.F.R. �� 1614.107(a)(1) and (2) .
On appeal, complainant does not challenge the dismissal and, therefore,
it is not addressed herein.