01A24714_r
08-08-2003
John M. Harvey, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
John M. Harvey v. Department of Veterans Affairs
01A24714
August 8, 2003
.
John M. Harvey,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A24714
Agency No. 200N-0663-2001-300495
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. 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 complainant was formerly employed as a food
service worker at the agency's Medical Center in Seattle, Washington.
Complainant contends that due to a conflict with his duties as an Air
Force reservist, he resigned his food service worker position effective
January 27, 2001. Subsequently, complainant applied for a food service
worker position at the same facility, but the agency failed to rehire
him. Consequently, complainant sought EEO counseling and filed a formal
complaint on September 7, 2001, alleging that he was discriminated against
on the basis of race (African-American) and in reprisal for prior EEO
activity when in August 2001, the agency failed to rehire him for the
position of food service worker.
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 final decision, the agency found no discrimination because it
determined that management offered legitimate, non-discriminatory reasons
for its actions that were not persuasively rebutted by complainant as
pretext for unlawful discrimination. Specifically, the selecting official
responded that she did not rehire complainant for the food service worker
position because he previously resigned from this position two months
after being selected and only worked one week after purporting to give
the agency two weeks' notice of his resignation.
Although the Commission finds that complainant properly established a
prima facie case of discrimination based on race and reprisal, we also
find that complainant failed to present evidence that more likely than
not, the agency's articulated reasons for its actions were a pretext for
discrimination. In reaching this conclusion, we note that complainant
resigned from the same position at issue just two months after being
selected. Moreover, the record reveals that complainant only worked
one week after notifying the agency of his resignation in January 2001,
although he purported to give the agency two weeks' notice. We further
note that complainant applied for the relevant food service worker
position on June 13, 2001, less than five months after leaving the agency.
Complainant contends that pretext is proven by the fact that the agency
rehired three other employees who resigned their positions. However, the
record reflects that one of the employees chose to transfer to another
department within the agency and another employee did not resign from
the agency. Further, complainant made no claim and the record does not
reflect that any of the employees resigned shortly after being placed
in their positions, failed to give the customary two weeks's notice
before leaving the agency, nor sought reinstatement mere months after
leaving the agency. Therefore, we conclude that complainant failed to
persuasively rebut the agency's legitimate, non-discriminatory reasons
for not rehiring him as pretext.
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 FAD.
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 8, 2003_________________
Date