01971470
06-08-1999
James A. Kokkinis, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
James A. Kokkinis v. Department of Veterans Affairs
01971470
June 8, 1999
James A. Kokkinis, )
Appellant, )
)
v. ) Appeal No. 01971470
) Agency No. 95-2239
) 96-0919
Togo D. West, Jr., ) Hearing No. 210-96-6186X
Secretary, ) 210-96-6187X
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely appealed the final decision of Department of Veterans
Affairs (agency), concerning his equal employment opportunity (EEO)
complaint of unlawful employment discrimination. Appellant alleged
that he was discriminated against on the bases of race (White) in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., during the period approximately April 1995
through August 1995, when: (1) he was relieved of his supervisory duties
and reassigned; (2) inter alia, his arrest authority was suspended; (3)
he was reassigned to an area where multiple complaints of drug dealing
had been reported without his VA weapons; (4) he was demoted from his
probationary Supervisory Police Officer position, GS-7, to a Police
Officer position, GS-6; (5) he was suspended for 14-days; and (6) he
was subjected to retaliation, in addition to discrimination based on his
race, when he was rated "Unacceptable" in the Supervisory Police Officer
position, GS-7. The appeal is accepted by the Commission in accordance
with the provisions of EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
Appellant filed two formal complaints alleging that the agency
discriminated against him as referenced above. The agency accepted
both complaints for investigation and consolidated the complaints for
one hearing following appellant's timely request for a hearing with an
Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). On September 30, 1996, the AJ issued a recommended decision
without a hearing in accordance with 29 C.F.R. �1614.109(e)(3).
The agency subsequently adopted the AJ's recommended decision (RD)
in a final agency decision (FAD) dated November 1, 1996.
The Commission has reviewed the record, consisting of the investigative
report, the AJ's recommended decision, various correspondence, the FAD,
and the parties' statements on appeal. The Commission concludes that,
in all material respects, the AJ accurately set forth the facts giving
rise to the complaint and the law applicable to the case. The Commission
further concludes that the AJ correctly determined that appellant had
not established a prima facie case of discrimination based upon race for
any of the allegations contained in the present consolidated complaint.
We also conclude that the agency successfully rebutted appellant's prima
facie case of retaliation regarding his August 29, 1995, "unacceptable"
performance rating. Therefore, we find that the AJ correctly determined
that appellant had not established, by a preponderance of the evidence,
that the agency discriminated against him as alleged in his complaint.
Accordingly, the Commission herein adopts the AJ's recommended findings
of fact and conclusions of law.
The Commission notes that the gist of appellant's appeal is that the
AJ inappropriately limited his discovery request. Appellant further
contends that the agency's discriminatory actions noted in this complaint
culminated in his removal from Federal service. First, regarding
appellant's discovery request, the AJ more than adequately addressed
appellant's argument in her RD. The AJ found that appellant's discovery
request was over broad, e.g., his request covered a 23-year period and
was not limited geographically. Therefore, the AJ directed the agency
to provide specific relevant information for the period of May 1, 1992
thru May 31, 1995, for the police officer staff at the agency's Hines,
Illinois facility. Under 29 C.F.R. �1614.109(b), the AJ is given the
authority to limit the quantity and timing of discovery. Therefore,
the Commission concludes that the AJ appropriately modified appellant's
discovery request in accordance with Commission regulations. Second, we
find that appellant's removal from Federal Service is not at issue in this
complaint. Therefore, appellant's removal is not appropriately before
this Commission for review. See 29 C.F.R. �1614.107(b). Appellant is
advised that he should contact an EEO Counselor if he wishes to file a
complaint regarding his removal from Federal service. The Commission
finds that appellant offered no additional persuasive evidence in support
of his claim on appeal. Therefore, we discern no legal basis to reverse
the AJ's finding of no discrimination. Accordingly, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the final agency
decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 8, 1999
DATE Carlton Hadden, Acting Director
Office of Federal Operations