0120100533
08-04-2011
Herbert McGee, Jr., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Herbert McGee, Jr.,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100533
Hearing No. 461-2009-00051X
Agency No. 200L-0629-2008102147
DECISION
On November 7, 2009, Complainant filed an appeal from the Agency's October 2, 2009, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
The record reveals that prior to February 2007, Complainant worked as a Police Officer at the Agency's VA Outpatient Clinic in Baton Rouge, Louisiana. Due to concerns about Complainant's improper handling of a ticket and issues with a co-worker, management reassigned Complainant in late February, 2007, to the VA Medical Center in New Orleans. Shortly thereafter, Complainant was injured in a motor vehicle accident; he had (temporary) physical restrictions; and he was unable to perform all the duties of his Police Officer position. As a result of the accident, management assigned Complainant to the position of Telecommunications Equipment Operator (Telecommunications Operator) within the Police Service at the Agency's New Orleans facility. In late February, 2008, Complainant asked management to reassign him, as a Telecommunications Operator, to the VA Outpatient Clinic in Baton Rouge, but management denied his request.
Complainant filed an EEO complaint dated May 10, 2008, alleging that the Agency discriminated against him in reprisal for protected EEO activity when: On February 27 2006, Complainant discovered that his reassignment from the VA Medical Center in New Orleans to the VA Outpatient Clinic in Baton Rouge would not be considered.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not respond to the notice, the Agency referred the complaint for the issuance of a final decision on January 9, 2009. Thereafter, Complainant requested a hearing before an AJ. The AJ assigned to the case denied the hearing request on the grounds that the request was untimely filed. Specifically, the AJ noted that the Agency delivered the ROI to Complainant on November 17, 2008, and properly advised him of his right to request a hearing before an AJ with the EEOC New Orleans Field Office within 30 days of receipt of the notice. The AJ noted, however, that Complainant did not file his hearing request until February 5, 2009, which was beyond the applicable limitation period. Thus, the AJ remanded the complaint to the Agency for the issuance a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency issued a final decision on October 2, 2009. The Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. The Agency noted that Complainant had not engaged in any protected EEO activity prior to the present complaint. The Agency noted that Complainant informed the EEO Counselor that he believed management reassigned him as a result of past grievances he filed. The Agency stated due to Complainant's vague statements about his past grievances and his failure to provide an affidavit in support of his complaint, it was unable to determine whether Complainant's prior grievances constituted protected activity under Title VII. Thus, the Agency determined Complainant failed to establish a prima facie case of discrimination based on reprisal.
However, the Agency stated that assuming Complainant established a prima facie case of discrimination, management articulated legitimate, non-discriminatory reasons for its actions. The Agency noted that in February 2008, Complainant asked management to allow him to switch positions with Co-Worker X, an employee in the Baton Rouge facility, who wanted to work in New Orleans. The Agency stated it denied Complainant's request because Co-Worker X was a Security Guard and not a Telecommunications Operator. The Agency also noted that Complainant engaged in multiple mediations with management and in mid-2008, management reassigned Complainant to Baton Rouge and shortly thereafter, after being cleared by his physician, Complainant began performing his former Police Officer duties at the Baton Rouge facility.
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").
At the outset, we note Complainant does challenge the AJ's decision to dismiss his hearing request as untimely filed and we find no reason to disturb the AJ's dismissal of Complainant's request for a hearing. Moreover, we note that Complainant does not object to the definition of his complaint as contained in the Agency's final decision and we find the Agency's definition of the complaint was proper. Additionally, we find the record in the present case was adequately developed.
Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for denying Complainant's request to switch positions with Co-Worker X in Baton Rouge. Specifically, the record shows that during the relevant time Co-Worker X worked as a Security Guard and did not perform the same duties as Complainant who at this time worked as a Telecommunications Operator. We find that Complainant failed to show by a preponderance of the evidence that the Agency's explanation for its actions was a pretext for prohibited discrimination.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination is AFFIRMED.
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
8/4/11
__________________
Date
2
01-2010-0533
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100533