01a05796
02-14-2001
Victor Walton, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Victor Walton v. Department of Veterans Affairs
01A05796
February 14, 2001
.
Victor Walton,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05796
Agency No. 993068
Hearing No. 230-A0-4072X
DECISION
Victor Walton (complainant) timely initiated an appeal from the agency's
final order concerning his equal employment opportunity (EEO) complaint of
unlawful discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1> The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he was
subjected to discrimination on the basis of race (Black) when, on April
27, 1999, management asked him to sign a six month extension of a Last
Chance Agreement instead of terminating him for breaching that agreement.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, a Social Worker at the agency's
Battle Creek, Michigan Medical Center, filed a formal EEO complaint with
the agency on May 25,1999, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ concluded that complainant established a prima facie case of race
discrimination because he, the only Black social worker, was required
to follow certain procedures for signing in and submitting work that
other social workers were not required to follow. The AJ also noted
that one co-worker testified that complainant was treated more harshly
than his white colleagues.
The AJ further concluded that the agency articulated a legitimate,
nondiscriminatory reason for its actions. The AJ found that complainant
was given a proposed removal on June 23, 1998 for being absent without
leave (AWOL) and failure to follow leave procedures. In lieu of removal,
complainant signed a LCA in which he agreed to follow the appropriate
leave procedures and, in general, follow the instructions of management
officials for one year. On October 5, 1998, complainant was given a
written counseling by his Coordinator for failure to submit �patient
encounter� information in a timely fashion. On January 11, 1999,
complainant's Coordinator was informed that complainant was still
not submitting the encounter forms on a daily basis. Subsequently,
on March 5, 1999, the Director of the Medical Center gave complainant a
notice of removal for failure to adhere to the terms of the LCA in that,
despite numerous requests, complainant was not submitting the encounter
forms as required. After complainant filed a grievance claiming that the
situation was simply due to miscommunication, the notice of removal was
mitigated to a six month extension of the LCA.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reason was a pretext to mask unlawful
discrimination. The agency's final order implemented the AJ's decision.
Complainant makes no contentions on appeal, and the agency requests that
we affirm its final order.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Commission regulations allow an AJ to
issue a decision without a hearing when he or she finds that there is no
genuine issue of material fact. This regulation is patterned after the
summary judgment procedures set forth in Rule 56 of the Federal Rules
of Civil Procedure. Summary Judgment is proper when �material facts are
not in genuine dispute.� 20 C.F.R. � 1614.109(g). Only a dispute over
facts that are truly material to the outcome of the case should preclude
summary judgment. See Anderson v. Liberty Lobby, Inc., 277 U.S. 242,
248 (1986) (only disputes over facts that might affect the outcome of
the suit under the governing law, and not irrelevant or unnecessary
disputes, will preclude the entry of summary judgment). For example,
when a complainant is unable to set forth facts necessary to establish one
essential element of a prima facie case, a dispute over facts necessary to
prove another element of the case would not be material to the outcome.
See Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110),
at 7-15, November 9, 1999. The Commission will apply a de novo standard
of review when it reviews an AJ's decision to issue a decision without
a hearing pursuant to 29 C.F.R. � 1614.109(g). See EEO-MD-110, at 9-16.
As an initial matter, we note that despite being given the opportunity
to do so, complainant failed to assert that this case involves genuine
issues of material fact. Moreover, we agree with the AJ's determination
that this case involves no such issues. Complainant failed to present
evidence that the agency's actions were motivated by discriminatory
animus toward complainant's race. In so finding, we note that it is
undisputed that the other social workers in complainant's office turned
in patient encounter forms to the appropriate individuals every day, or,
occasionally, every few days, whereas complainant entered the necessary
information himself or had someone assist him on a far less regular basis.
Complainant persisted in this behavior despite being asked to turn the
forms in more often. Moreover, although evidence established that
complainant is the only social worker who is required to sign in or
otherwise let his supervisor know of his whereabouts, it is undisputed
that complainant spends most of his time out in the field, whereas the
other social workers are in the office, visible to the supervisor and in
contact with him, every day. Complainant failed to produce any evidence
to suggest that the agency's explanation for its actions was a pretext
for discrimination. Therefore, after a careful review of the record,
including arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 14, 2001
Date
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.