Henry Lee, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 7, 2005
01a53166 (E.E.O.C. Jul. 7, 2005)

01a53166

07-07-2005

Henry Lee, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Henry Lee v. Department of Veterans Affairs

01A53166

July 7, 2005

.

Henry Lee,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A53166

Agency No. 200M-0554-2004-101427

DECISION

Complainant timely initiated an appeal from an agency final decision

dated March 9, 2005, concerning his formal EEO complaint of unlawful

employment discrimination brought pursuant to 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. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405.

During the relevant time, complainant was employed as a Medical

Supply Technician at the agency's Medical Center in Denver, Colorado.

Complainant filed a formal complaint on March 30, 2004. Complainant

claimed that he was subjected to harassment due to a hostile work

environment when:

(1) On or about January 16, 2004, complainant's co-workers made comments

that complainant was �lazy� because of his light duty assignment; and

Complainant also claimed that he was discriminated against on the bases

of race (African-American), sex (male), disability (back impairment),

and in reprisal for prior EEO activity when:

On or about January 14, 2004, complainant was not selected for the

position of Supply Technician (GS-2005-06, under vacancy announcement

number 03-127).

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 final decision, the agency made reference to its previous �partial

dismissal� of claim (1), and again found that this claim, standing alone,

failed to state an actionable claim of harassment.

Regarding claim (2), the agency determined that even assuming that

complainant demonstrated a prima facie case of discrimination on

each alleged protected basis, the agency articulated a legitimate,

non-discriminatory reasons for its action. Specifically, the agency

determined that the selectee (SE) was ranked number one by the selection

panel, and had years of hands-on experience with the computer based

program for agency equipment and agency supply processes. In particular,

the agency found that SE had experience �processing equipment receiving

reports, turn-ins and dealt with all of the using services in the

facility,� whereas complainant had much less knowledge and/or experience

with the agency's equipment program or supply processes. The agency

indicated that SE had more pertinent experience as compared to any of

the other candidates, with the selecting panel scoring SE at 80 points,

and complainant at 44 points, the lowest of all the candidates.

The agency found that complainant failed to present any evidence

that the above reasons were untrue or a pretext for discrimination.

Accordingly, the agency concluded that complainant failed to establish,

by a preponderance of the evidence, that he was discriminated against

as claimed.

Claim (1)

Unless the conduct is very severe, a single incident or a group of

isolated incidents will not be regarded as creating a discriminatory work

environment. See James v. Department of Health and Human Services, EEOC

Request No. 05940327 (September 20, 1994); Walker v. Ford Motor Company,

684 F.2d 1355 (11th Cir. 1982). Even when viewed within the context of

the entire complaint, and in a light most favorable to complainant, claim

(1) is too isolated and insufficiently severe to establish a hostile

work environment. Consequently, we find that claim (1) was properly

dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state

a claim. Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997).

Accordingly, we AFFIRM the agency's dismissal of claim (1).

Claim (2)

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<1>.

See Holley v. Department of Veterans Affairs, EEOC Request No. 05950842

(November 13, 1997). 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).

Here, we concur with the agency that the identified selecting official,

SO, articulated a legitimate, non-discriminatory reason for selecting

SE for the position at issue, in that she described SE's qualifications

in detail, in particular his extensive experience with the agency's

equipment program and supply processes. Additionally, SO noted, and

the record confirms, that complainant had little experience with the

agency's equipment program and supply processes. The record reflects that

eight candidates made the best qualified list, including complainant,

and that each received an interview conducted by a panel, and that SE

received the highest score, and complainant received the lowest score.

In challenging this reason, complainant asserts that he has 14 years of

experience in the military and with the Department of Defense, but does

not otherwise describe how this experience makes him better qualified for

the position as compared to SE. Moreover, beyond a bare assertion that

he is better qualified, and that his non-selection was discriminatory,

complainant provides no evidence to show that the agency's reason for

its action was untrue or a pretext for discrimination.

Accordingly, we AFFIRM the agency's finding of no discrimination regarding

claim (2).

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

July 7, 2005

__________________

Date

1For the purposes of this analysis only, we assume, without finding,

that complainant established that he is a qualified individual with a

disability, as defined by the Rehabilitation Act.