0120083570
01-30-2009
Joseph M. Battan, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joseph M. Battan,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083570
Agency Nos. 200J-0578-2007102401
200J-0578-2007103500
Hearing No. 440-2008-00085X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 19, 2008 final order concerning his equal
employment opportunity (EEO) complaints 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.
Complainant alleged that the agency discriminated against him on the
basis of reprisal for prior EEO activity when:
1. on April 23, 2007, he was instructed to share his office with a
co-worker;
2. on June 6, 2007, he was denied eight hours of annual leave and charged
Leave Without Pay (LWOP);
3. on July 18, 2007, he was denied annual leave and charged 2.5 hours
of Absence Without Leave (AWOL);
4. on May 14, 2007, he was issued a five-day suspension;
5. he was charged 102 hours of AWOL for the period of August 6, 2007 -
September 7, 2007; and
6. between September 12, 2007 and October 1, 2007, he was charged a
total of 4.5 hours of AWOL.
The Administrative Judge (AJ) assigned to the case granted the agency's
motion for a decision without a hearing.1 The AJ found that complainant
had not established a prima facie case of reprisal discrimination.
Specifically, the AJ found that complainant failed to show a nexus between
his prior EEO activity and the agency action at issue. The AJ further
found that even assuming complainant established a prima facie case,
the agency articulated legitimate, nondiscriminatory reasons for its
actions which complainant failed to show were a pretext for unlawful
retaliation.
Regarding claim 1, the AJ noted that according to complainant's first and
second level supervisors, complainant was instructed to share his office
with his co-worker in order to facilitate the repair of computer and other
equipment when one or the other person was absent. Regarding claim 2,
the AJ noted that according to complainant's second level supervisor
(S2), complainant was denied eight hours of annual leave and charged
LWOP on June 6, 2007 because he was not eligible for family medical
leave (FML). S2 stated that during the relevant time complainant had
issues with his mother's caregiver. S2 further stated that he tried to
explain to complainant "I understand that if you got problems with your
caregiver and they are not reliable, you need to do something about it."
Furthermore, S2 stated that he informed complainant that he could not keep
reporting to work late because it had been "going on for a long time."
Regarding claim 3, the AJ noted that because complainant reported to work
late, he was charged 2.5 hours of AWOL. The AJ noted that a review of
the record reflects that complainant's home caregiver called in stating
that complainant would be late but complainant was still charged AWOL.
The AJ further noted that according to complainant, he was aware he
was out of FML and could not take the leave. Regarding claim 4, the AJ
noted that complainant was issued a five-day suspension for being outside
his work area, submitting an inaccurate work log, unreasonable delay in
performing assignments and failure to complete a work assignment.
Regarding claim 5, the AJ noted that according to S2, complainant was
charged 102 hours of AWOL for the period of August 6, 2007 - September 7,
2007 because he did not provide documentation. Specifically, S2 stated
that complainant "didn't provide any documentation until he returned.
So that's basically policy. Until you get documentation, you are
supposed to - - based on what HR tells you, you are supposed to be in
an AWOL status until we get something from him."
Regarding claim 6, S2 stated that during the relevant time, complainant
was tardy on several occasions. S2 stated that complainant was charged
AWOL because he did not see any improvement concerning his attendance.
Specifically, S2 stated that complainant "was late two days the previous
week that we let him make it up. And then he was two more - - was two
hours late on the 13th, and then on the 18th, 15 minutes again. And I
just said, you know, he needs to get his business in order. Until he has
30 consecutive days of being on time, he was going to be charged AWOL.
S2 also stated that he denied complainant's request for 1.5 hours of
annual leave for a doctor's appointment. S2 stated that "the annotation
in the time and attendance that he should have used sick leave."
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
January 30, 2009
__________________
Date
1 The record does not contain a copy of the agency's motion for a decision
without a hearing.
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0120083570
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083570