01a51268
03-30-2005
James E. Miller, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
James E. Miller v. Department of Veterans Affairs
01A51268
March 30, 2005
.
James E. Miller,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51268
Agency No. 200L-0623-2003102524
Hearing No. 310-2004-00314X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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 appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that at the relevant time, complainant was a Day
Shift Work Leader at the VA Medical Center in Muskogee, Oklahoma.
Complainant filed a formal EEO complaint on May 28, 2003, alleging that
the agency discriminated against him on the bases of race and color
(Black) and in reprisal for prior EEO activity when:
(1) On April 22, 2003, the Chief of Engineering Service told complainant
to return his keys while the Work Leaders in Engineering Service were
allowed to keep their keys;
On June 11, 2003, complainant's tour of duty was changed from working
on weekends to working Monday through Friday;
On June 11, 2003, complainant was no longer assigned to Work Leader
duties; instead he was assigned Housekeeping Aide duties; and
On August 16, 2003, complainant's work assignments were changed to
prevent him from working overtime and denying him overtime.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
As to issues (1) and (4) the AJ concluded that complainant was not
aggrieved. Specifically, the AJ found that as to (1), complainant never
in fact had to turn in his keys, despite the initial directive to do so.
The AJ further found that complainant failed to establish a prima facie
case of reprisal as to issue(1) because there was no causal connection
between the challenged action and complainant's prior EEO activity.
The AJ noted that complainant did not show that his supervisor was
aware of his prior EEO activity at that point in time. As to (4),
the AJ found that complainant was not aggrieved as he did not have any
entitlement to working with the night crew during this overtime period.
The AJ further found that the supervisor in charge had the prerogative
to adjust the assignments in order to meet the goal of preparing the
facility for an upcoming inspection. The AJ also found as to issue (4),
that complainant failed to establish a prima facie case of disparate
treatment because he did not identify any similarly situated individual,
not in his protected class, who was treated more favorably.
As to issue (2), the AJ found that complainant failed to establish a prima
facie case of disparate treatment because a similarly situated employee
(C1) was treated in the same manner. As to issue (3), the AJ again
found no prima facie case because C1 was treated in the same manner.
The AJ noted that the evidence showed that both complainant and C1 were
considered work leaders who also had to perform housekeeping duties.
The AJ further found that the agency articulated legitimate,
nondiscriminatory reasons for its actions; namely, as to issue (1), the
Service Chief (S1) stated that he had received a suggestion from one of
his supervisors that in order to improve control over the keys on the day
shift, the housekeeping personnel should turn in their keys at the end
of the shift. S1 agreed with the suggestion and issued the directive.
After complainant voiced disagreement, S1 reconsidered and withdrew
the directive. As to issue (2), the AJ found that S1 stated that the
change in schedule was to better adjust personnel to the needs of the
facility. As to issue (3), the AJ found that management notes that the
challenged-action did not change complainant's title, pay or work leader
responsibilities. As to issue (4), complainant's supervisor attempted
to assign complainant to other work because there were already sufficient
employees assigned to buffing floors, however complainant refused. The AJ
then found that complainant failed to prove that the agency's reasons
were pretextual. The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order. Pursuant to 29 C.F.R. � 1614.405(a),
all post-hearing factual findings by an AJ will be upheld if supported by
substantial evidence in the record. Substantial evidence is defined as
�such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National Labor
Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An AJ's conclusions of law are subject to a de novo standard of review,
whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record.
We conclude that complainant failed to present evidence that any of
the agency's actions were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus toward complainant's
race or color. We discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.
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:
March 30, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations