01A21946
08-11-2003
John I. Davis, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
John I. Davis v. Department of Agriculture
01A21946
August 11, 2003
.
John I. Davis,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A21946
Agency No. 98-0594
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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 decision.
The record reveals that during the relevant time, complainant was employed
as a GS-361-7, Equal Employment Assistant in the agency's Civil Rights
and Small Business Utilization division in Washington, D.C. Complainant
sought EEO counseling and subsequently filed a formal complaint on April
21, 1998, alleging that he was discriminated against on the bases of
race (Black), sex (male), color (black), disability (legally blind),
age (DOB:8/8/49), and reprisal for prior EEO activity when:
(1) on January 12, 1998, the agency failed to honor his request to be
placed into the Selective Placement Program;
on January 6, 1998, the agency failed to accommodate his request for
work assignments to be typed in larger print and to have more lighting
in his work area;
the agency failed to accommodate his request to purchase an Omni 300
Vista PCI computer;
his supervisor laughed at him and stated, �you did that quick didn't
you;�
his disability and illness was announced to the staff;
between August 1997 and January 1998, he was asked to perform duties
at a lower level;
the agency denied his requests for training, which included: the Ability
to Analyze and Evaluate on February 9, 1998; Aspiring Leader Program
(ALP) on May 21, 1997; and classroom training on June 2, 1997;
the agency failed to select him for the position of GS-7/9/11/12,
Equal Employment Specialist in 1998; and,
on April 14, 1998, he was reassigned from the Office of the Director
to the EEO Branch.
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. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to show that
he was discriminated against on the bases of race, color, sex, age,
disability or reprisal. Specifically, the FAD found that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
The FAD also found that complainant failed to show that any of these
reasons were a pretext for discriminatory animus or retaliatory motive.
On appeal, complainant contends, among other things, that the agency's
FAD was based on anger rather than the fact. The agency did not file
a response to complainant's appeal.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima
facie case, following this order of analysis is unnecessary when the
agency has articulated a legitimate, nondiscriminatory reason for its
actions.<1> See Washington v. Department of the Navy, EEOC Petition
No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from
whether the complainant has established a prima facie case to whether
he has demonstrated by preponderance of the evidence that the agency's
reasons for its actions merely were a pretext for discrimination. Id.
After a careful review of the record, we find that the FAD correctly
concluded that the agency did not discriminate against complainant on the
bases of race, color, sex, age, disability and/or reprisal. In finding no
discrimination, the FAD relied on the undisputed evidence regarding the
fact that complainant did not produce evidence showing that he requested
consideration under a Selective Placement Program. In regard to larger
print and more lighting in his work area, belittling comments made by
management, and his disability and illness being announced to the staff
the Commission agrees with the FAD's determination that complainant
failed to engage in timely EEO counselor contact. Complainant does
not present sufficient evidence that he engaged in timely EEO contact
pursuant to 29 C.F.R. � 1614.105.
In regard to the Omni 3000 and Vista PC1 computer, the record reflects
that the agency purchased the equipment that complainant requested.
The record also indicates that the delay complainant experienced was
due to the fact that he refused to meet with the agency management to
discuss his accommodation needs.
In regard to the training courses, the record establishes that complainant
was not permitted to attend certain training opportunities because they
were outside the parameters of the Settlement Agreement. In addition,
the record contains no evidence that individuals similarly situated,
but outside of complainant's protected classes were permitted to attend
training courses. In fact, the record establishes that no employee had
a training request approved.
In regard to the non-selection, the record reflects that the position was
filled at the GS-12 level by an individual who was on a non-competitive
certificate. The record also establishes that complainant failed to
receive a sufficient point score to be placed on the GS-7 certificate.
The record further shows that it was imperative that the person
selected for the Equal Employment Specialist position be able to perform
immediately.
In regard to the reassignment claim, the record reflects that complainant
was not reassigned. In fact, other than memoranda proposing to reassign
complainant, there is no evidence that the agency ever took an definitive
or official action. Consequently, because the allegation is based on
preliminary steps to a personnel action, we agree with the agency's
dismissal of this claim pursuant to 29 C.F.R. � 1614.107(a)(5).
Based on the foregoing, we find that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. The Commission
also finds that complainant failed to present sufficient evidence to
show that any of the agency's actions were a pretext for discriminatory
animus and/or retaliatory motive. Therefore, after a careful review
of the record, including complainant's contentions, and arguments and
evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
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
August 11, 2003
__________________
Date
1 Because we find that the agency has
articulated legitimate, nondiscriminatory reasons for its actions, we
do not reach the issue of whether complainant is a qualified individual
with a disability.