01971180
06-09-1999
Sammy McNeal, Jr., Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Sammy McNeal, Jr., )
Appellant, )
) Appeal No. 01971180
v. ) Agency Nos. 95-2032; 96-0203
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) 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 Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and � 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.
Appellant alleges that he was discriminated against on the bases of race
(Black), sex (male), age (43), physical disability (unspecified �spinal�)
and in reprisal for prior EEO activity when he was not selected for
the positions of Housekeeping Aid or Medical Administrative Assistant.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED as CLARIFIED.
The record reveals that appellant, a former employee of the agency,
was seeking reinstatement when he applied for the above referenced
positions at the Edward Hines, Jr. Department of Veterans Affairs
Medical Center in Hines, Illinois. When he received notice of his
non-selections, appellant sought EEO counseling and subsequently filed
complaints on June 23, 1995, and October 20, 1995. The complaints were
consolidated for processing. At the conclusion of the investigation,
appellant requested a hearing before an EEOC Administrative Judge (AJ).
By the Order dated May 15, 1996, the AJ canceled the hearing for failure
to prosecute or proceed without delay. The AJ remanded the case to the
agency with the recommendation that it issue a final decision.
The FAD found that appellant established only a prima facie case of
reprisal discrimination. The FAD further found that appellant failed
to prove that the agency's legitimate, nondiscriminatory reasons for
appellant's non-selections were a pretext for discrimination on any basis.
Appellant has not submitted a statement in support of his appeal.
The agency requests that we affirm its FAD.
Applying the legal standards set forth in McDonnell Douglas v. Green,
411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); and
Prewitt v. United States Postal Service, 62 F.2d 292 (5th Cir. 1981),
we find there is no evidence in the record to support a finding that
appellant has a disability within the meaning of the Rehabilitation Act.
Furthermore, we find that appellant fails to establish a prima facie case
of discrimination on any basis with regard to the Medical Administrative
Assistant position because the vacancy announcement was canceled before
any selection was made.
We disagree with the agency that appellant established a prima facie case
of reprisal discrimination since his allegations of prior EEO activity
are unsubstantiated and management denies knowledge of them. We find
that appellant has established prima facie cases of race, sex and age
discrimination with regard to the Housekeeping Aid position as applicants
outside of his protected classes were selected for the position.
However, we agree with the agency that appellant failed to present
evidence that more likely than not, the agency's articulated reason for
its actions was a pretext for discrimination. Management stated that
appellant had an employment history which included frequent job changes,
terminations and unexplained periods of unemployment and absences.
The record establishes that in 1991, the agency removed appellant from his
position of Health Aide because he had accumulated eighty hours of AWOL.
We also note that appellant was ninety minutes late for his interview.
Moreover, the selectees included applicants of the same race, sex and
age group as appellant. Appellant has offered no credible evidence to
refute the agency's explanation that he was not hired because of his
employment record.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD
as CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
June 9, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations