0120080970
05-05-2008
Edward J. Simpkins, Complainant, v. Elaine L. Chao, Secretary, Department of Labor, Agency.
Edward J. Simpkins,
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120080970
Agency No. 0711054
DECISION
On December 15, 2007, complainant filed an appeal from the agency's
December 12, 2007, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Benefits Advisor with the agency's Employee Benefits Security
Administration. On January 8, 2007, with subsequent amendments on January
22 and 23, 2007, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (African-American), sex
(male), age (45 years old at the time of the incidents in question),
and reprisal for prior protected EEO activity under an EEO statute that
was unspecified in the record when:
1. From October 1, to December 29, 2007, complainant's supervisor
(RMO: Caucasian, male, 59 years old) was not timely in reviewing and/or
approving complainant's work;
2. On January 12, 2007 complainant was notified that his TAIS (meaning
unspecified in the record) entries required additional follow-up; and
3. On January 23, 2007 complainant received a Memorandum of Warning
(Memorandum).
The agency accepted claims 1 and 3 for investigation and dismissed claim 2
for failure to state a claim, finding that complainant was not aggrieved.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) concluding that complainant failed to prove that
he was subjected to discrimination as alleged. Specifically, as regards
claim 1, RMO denied reviewing complainant's work in an untimely manner,
and as regards claim 3, the Memorandum stated that it was being issued
because complainant refused to follow RMO's instructions concerning
answering telephone calls. On appeal, complainant contends that the
agency failed to present statistical and other evidence to support its
claims.
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 EEOC Management
Directive 110, 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").
As regards claim 2, we find that the agency properly dismissed the claim
for failure to state a claim since complainant failed to show he suffered
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994).
As regards claims 1 and 3, we note that in order to prevail in a disparate
treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a
prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
Specifically, as regards claim 1, RMO denied reviewing complainant's work
in an untimely manner, see Report of Investigation (ROI) Tab F2, p. 3,
and as regards claim 3, the Memorandum stated that it was being issued
because complainant refused to follow RMO's instructions concerning
answering telephone call. ROI, Tab F1, p. 5.
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995). Rather than seek to establish pretext,
complainant argues that the agency "has not provided any statistical data
to show by a preponderance of the evidence that it did not discriminate,"
complainant's appeal brief, against him. Complainant, however, has
misconstrued the burden of proof in an employment discrimination claim.
The ultimate burden rests with the Complainant who must prove that the
Agency's stated reasons for its actions was a pretext for a discriminatory
decision. See McDonnell Douglas, supra. Following a review of the record,
we find that complainant has not met his burden of establishing, by a
preponderance of the evidence, that the agency's action were a pretext
for discrimination. Accordingly, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 5, 2008
__________________
Date
2
0120080970
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120080970