01986324
03-16-2000
Keith K. Bell, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Keith K. Bell v. Department of Veterans Affairs
01986324
March 16, 2000
Keith K. Bell, )
Complainant, )
)
v. ) Appeal No. 01986324
) Agency No. 98-0631
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
On August 20, 1998, Keith K. Bell (hereinafter referred to as
complainant) filed a timely appeal from the August 11, 1998, final
decision of the Department of Veterans Affairs (hereinafter referred
to as the agency) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. The appeal is timely filed (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with
64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated
against him in reprisal for previous EEO activity when he received a
fully satisfactory rating in November 1997.
Complainant filed his formal complaint on January 8, 1998. Following an
investigation, he was advised of his right to request a hearing or an
immediate final agency decision (FAD). He requested a FAD, and the
agency issued a FAD, finding no discrimination. Complainant has filed
the instant appeal without comment.
Complainant was a Medical Administration Specialist and served on a
rotating basis as the administrative officer for the day. After September
1996, following a reorganization, complainant, inter alia, objected to a
new supervisor (S1) and refused to arrange transportation for patients
on several occasions. In March 1997, S1 issued complainant a letter
of counseling. With regard to complainant's rating, S1 acknowledged
that he was aware of complainant's prior EEO activity and explained that
complainant's performance problems, poor attitude, and complaints from
others merited no higher than a fully satisfactory rating.
In general, claims, such as the complainant's, alleging disparate
treatment are examined under the tripartite analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). Initially, for
complainant to prevail, s/he must first establish a prima facie case
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). Once the agency offers a legitimate, nondiscriminatory
reason for its actions, it is complainant's burden to demonstrate by
a preponderance of the evidence that the agency's action was based on
prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext
for discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
Complainant establishes a prima facie case of reprisal discrimination,
in that, (1) he engaged in prior protected activity; (2) the acting
agency official was aware of the protected activity; (3) he was
subsequently disadvantaged by an adverse action; and, (4) there is a
causal link between the protected activity and adverse action. Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., supra; Manoharan
v. Columbia University College of Physicians and Surgeons, 842 F.2d 590,
593 (2d Cir. 1988). The causal connection may be shown by evidence
that the adverse action followed the protected activity within such a
period of time and in such a manner that a reprisal motive is inferred.
Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980). To support
a finding of unlawful retaliation, there must be proof that the acting
agency official(s) took the action at issue because of complainant's
prior protected activity and sought to deter complainant or others.
EEOC Compliance Manual on Retaliation, No. 915.003 (May 20, 1998),
p. 8-16.
We find that the agency articulated legitimate, nondiscriminatory reasons
for the rating issued to complainant, i.e., complainant's performance
did not merit a higher rating. Complainant has not shown that the
agency's explanation was untrue or based on prohibited factors, nor did
he demonstrate that he was singled out for discrimination. Therefore, we
find that the agency did not discriminate against complainant in reprisal.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 16, 2000
Date Carlton Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________ ________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.