01990251
06-14-2000
Alam E. Sher, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Alam E. Sher v. Department of Veterans Affairs
01990251
June 14, 2000
Alam E. Sher, )
Complainant, )
)
v. )
) Appeal No. 01990251
Togo D. West, Jr., ) Agency No. 96-1163
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the final agency decision (FAD)
concerning his allegation that the agency discriminated against him
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is accepted by the Commission in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405).<1> For the reasons set forth below, we AFFIRM
the FAD.
ISSUE PRESENTED
The issue presented is whether complainant proved that he was
discriminated against on the bases of his race (Asian-American),
religion (Muslim), national origin (Pakistani) and/or in reprisal for
filing a prior EEO complaint when he received a letter of admonishment
dated February 22, 1996.
BACKGROUND
Complainant filed a formal complaint dated March 29, 1996. Following an
investigation, he was provided a copy of the investigative file and
notified of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant initially requested a hearing, but withdrew
that request. Accordingly, the AJ remanded the complaint file to the
agency for a final decision. The agency found that complainant had
not been discriminated against, as referenced above. It is from this
decision that complainant now appeals. Complainant did not offer any
new contentions on appeal.
Complainant serves as the Chief, Pharmacy Service at the agency's Medical
Center in Grand Island, Nebraska. According to complainant, on February
13, 1996, he spoke to his supervisor, A-1, about the possibility that
he would need to take leave on Tuesday, February 20, 1996. Complainant
indicated that a major day of religious observance for the Muslim faith
fell on either Monday, February 19, 1996, which was a Federal holiday,
or Tuesday, February 20, 1996. The precise day of the observance would
depend on the position of the Moon; therefore, the exact day he would
need leave could not be determined in advance. Because the nearest
mosque was 160 miles from complainant's home, he would need to take the
entire day for his observance. According to complainant, A-1 told him
"fine, thank you for letting me know in advance." It turned out that
Tuesday, February 20, 1996, was the day that the observance occurred.
Although complainant did not go to work that day, there is no dispute
that he did not submit a request to A-1 for leave. He did, however,
telephone a subordinate on Monday, February 19, 1996, and told her that
he would be absent the next day.<2> On February 22, 1996, complainant
received a written admonishment from A-1 for not following the procedure
for requesting annual leave or to notify him of his decision to do so.
A-1 testified that complainant did tell him that he might take leave
on the 19th or 20th for religious purposes. A-1 stated, however, that
"he was to notify me of his decision." Because complainant never told
A-1 that he was definitely taking leave on Tuesday, A-1 only discovered
that complainant was absent from work when he did not show up for a
staff meeting. According to A-1, complainant "[d]id not follow supervisor
protocol." Initially, A-1 testified, he considered giving complainant a
letter of counseling, but after seeking the advice of the Director and
the Chief of Human Resources, he decided that an admonishment would be
the appropriate response. According to the agency, counseling, unlike
the admonishment, did not constitute an official disciplinary action.
According to A-1, after he issued the admonishment to complainant,
they met to discuss the matter. Complainant, he stated, felt that he
had a "blanket" approval to take leave. Although A-1 told complainant
that this was not the case, he expressed a willingness to rescind the
admonishment. A-1 testified that "[i]n good faith ... I was willing to
state that I could understand how he may have just been confused or may
have misunderstood what I was saying." As a condition of rescinding
the admonishment, A-1 asked complainant for the copy that he had been
provided. Complainant refused to return his copy. According to A-1,
complainant wanted to keep the copy for his files. Consequently, the
admonishment was not rescinded.
The record indicates that prior to the matter at issue here, complainant
filed a complaint against the agency in December 1995. A-1 and the
Director were both aware of complainant's prior EEO activity, before he
was issued the admonishment.
The agency's final decision found that complainant established a prima
facie case of reprisal discrimination, but he was found to have not
established a prima facie case of race, national origin, or religious
discrimination.<3> This was based on complainant's inability to show
that any other Service Chief was absent without properly requesting
leave. The agency, however, noted that A-1 provided legitimate,
nondiscriminatory and nonretaliatory reasons for issuing the admonishment,
i.e., complainant's absence without approved leave. Finally, complainant,
according to the agency, failed to establish pretext.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.<4>
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
_06-14-00________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2According to the record, the Pharmacy Service had someone present even
though it was a holiday.
3With respect to religion, the agency also found that complainant did not
establish a prima facie case under a denial of religious accommodation
because his leave request would have been granted had he made a proper
request. Although we agree with the agency's position, we note, however,
that complainant's claim is based on disparate treatment, not the denial
of a religious accommodation.
4The agency erred in concluding that complainant did not establish a prima
facie case of discrimination merely because he did not identify similarly
situated co-workers, who were of a different race, national origin, or
religion, who were treated in a more favorable manner. To establish
a prima facie case, complainant need only present evidence which, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination based on his race, national origin, or religion.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). It is
not necessary for complainant to show that a comparative individual,
from outside of his protected group, was treated differently. O'Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996); Enforcement
Guidance on O'Connor v. Consolidated Coin Caters Corp., EEOC Notice
No. 915.002, n.4 (September 18, 1996); Carson v. Bethlehem Steel Corp.,
82 F.3d 157, 159 (7th Cir. 1996). We note, however, that the agency
provided legitimate, non-discriminatory reasons for A-1's decision to
admonish complainant. Because complainant did not establish pretext,
we find that the agency's error was harmless.