01A44591r
10-13-2004
Richard Kennedy, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Richard Kennedy v. Department of Veterans Affairs
01A44591
October 13, 2004
.
Richard Kennedy,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44591
Agency No. 200I-0516-2003102248
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.
The record reveals that during the relevant time, complainant was
employed as a Supply Clerk at the agency's Bay Pines, Florida facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on May 12, 2003, alleging that he was discriminated against
on the bases of race (Caucasian), sex (male), and in reprisal for prior
EEO activity (arising under Title VII) when:
1. On March 7, 2003, the agency issued him a 14-day suspension, which
was mitigated to a five-day suspension;
On May 9, 2003, complainant was relieved of his process store duties;
On February 2, 2001, the agency issued complainant a 14-day suspension;
and
In May 2001, April 2001, and May 2002, complainant's supervisor
admonished him for using the bathroom sink, not clasping the pneumatic
tube cartridges prior to storing them, and for not flushing a urinal;
The agency dismissed claims 3 and 4 for untimely Counselor contact and
investigated claims 1 and 2. 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. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its final decision, the agency found no discrimination on complainant's
claims.
As a preliminary matter, we note that we review the decision on an
appeal from a final agency decision de novo. 29 C.F.R. � 1614.405(a).
Accordingly, we have carefully reviewed the entire record before us in
our attempt to discern whether a preponderance of the evidence warrants
a modification of the agency's ruling. See 29 C.F.R. � 1614.405(a).
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when, as here, the agency has
articulated a legitimate, nondiscriminatory reason for its actions.
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 s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this matter, agency management stated that complainant was suspended
for repeatedly displaying discourteous conduct towards other employees,
including an incident wherein complainant crumbled a request form from
a Fiscal Service Secretary into a ball and another incident wherein
complainant refused to complete an order for 1000 envelopes for a special
project. Agency management further stated that complainant was taken
off his process store duties
for about an hour and assigned duties in the warehouse because of
multiple complainants about complainant's discourteous conduct toward
other employees. Upon review of the matter, we find that complainant
has presented no persuasive evidence that the agency's legitimate,
non-discriminatory explanations for its actions were pretext for unlawful
discrimination or reprisal. Consequently, we affirm the agency's findings
of no discrimination for claims 1 and 2.
Claims 3 and 4
The agency dismissed claims 3 and 4 for untimely Counselor contact.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
The matters in claims 3 and 4 occurred in February 2001, April 2001, May
2001, and May 2002. The record reveals that complainant did not initiate
EEO Counselor contact until March 31, 2003, well beyond forty-five days
after the events in claims 3 and 4 occurred. On appeal, complainant has
offered no argument that would warrant an extension or waiver of the
applicable time limits. Consequently, we find that the agency properly
dismissed claims 3 and 4 for untimely Counselor contact.
Therefore, after a careful review of the record, we affirm the final
agency 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
_October 13, 2004_________________
Date