0120131125
06-20-2013
Behzad A. Samimi, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Behzad A. Samimi,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120131125
Hearing No. 520-2013-00030X
Agency No. 200H-0631-2010104541
DECISION
On January 18, 2013, Complainant filed an appeal from the Agency's December 17, 2012, final decision concerning his equal employment opportunity (EEO) complaint alleging 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a)
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Chief of the Safety Program at the Agency's Medical Center facility in Northampton, Massachusetts.
On November 3, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Middle Eastern), national origin (Iranian), sex (male), religion (Baha'i), disability (major depression and severe anxiety), age (52), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act of 1967; and Section 501 of the Rehabilitation Act of 1973 when, on July 13, 2010, Complainant learned that his request for Leave without Pay (LWOP) was denied.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision determined that the matter was moot. Specifically, the decision found that Complainant's request was granted on November 30, 2010. Further, Complainant failed to request compensatory damages. As such, the Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(5).
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
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. In finding that the matter was moot, the Agency addressed the merits of Complainant's claim of discrimination. We find that the Agency should have addressed Complainant's claims of discrimination rather than to dismiss complaint pursuant to 29 C.F.R. � 1614.107(a)(5) for mootness. As such, we shall address whether the Agency's action constituted discrimination.
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Upon review of the record, we find that the Agency provided Complainant with his requested accommodation. In February 2010, Complainant informed the Agency that he could not report for duty due to his non-work related injury. He had requested LWOP which was granted until May 2010. Subsequently, Complainant asked for a year of LWOP. Complainant's request was initially rejected in July 2010. However the Medical Center Director (Director) determined that Complainant, as the Chief of Security was needed at the workplace. The Director averred that the facility had a weak security program due to the lack of a Chief for three years. For the program to move forward, the Agency needed to have the Chief in place. Therefore, he determined that the Agency required leadership in that role. As such, the Director created a new Special Assistant to the Director for Safety so he could have somebody who could coordinate the safety activities. He also noted that there would be a place for Complainant once he could return. Therefore, the Director was able to grant Complainant's request for LWOP for a year in November 2010. Accordingly, we find that the Agency provided Complainant with the reasonable accommodation that he requested. Therefore, we determine that the Agency did not violate the Rehabilitation Act.
Complainant also asserted that the Agency's denial of LWOP constituted disparate treatment. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
As noted above, the Agency provided legitimate, nondiscriminatory reasons for initially denying Complainant's request for LWOP and subsequently granting the request based on the Director's creation of the Director of Security position. Complainant has not shown that the Agency's reasons were pretext for discrimination. As such, we determine that Complainant has not substantiated his claim of discrimination based on his color, race, religion, sex, national origin, age, and/or reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision albeit on other grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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, 2013
__________________
Date
2
0120131125
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131125