01975606
06-22-1999
William L. Quinn, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
William L. Quinn v. Department of Veterans Affairs
01975606
June 22, 1999
William L. Quinn, )
Appellant, )
) Appeal No. 01975606
v. ) Agency No. 95-1432
) Hearing No. 310-96-5279X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
)
DECISION
Appellant timely initiated an appeal from a final agency decision
concerning his equal employment opportunity complaint of unlawful
employment discrimination on the basis of reprisal for prior EEO activity,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Appellant alleges, in part, that the agency
retaliated against him by giving him low performance evaluations,
reassigning him, locking him out of his office, and giving him adverse
publicity in a local newspaper. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED.
The agency employed appellant as a physician at its medical center in
Waco, Texas. On September 11, 1995, he filed a complaint in which he
set forth the following allegations of discrimination:
He was given low performance/proficiency reports in January of 1992,
1993, 1994, and 1995;
He was locked out of his office on April 17, 1995; and
He was reassigned to the agency's medical center in Temple, Texas,
on June 21, 1995, and consequently lost his supervisory status;
He was referred to in a local newspaper on June 21, 1995, concerning an
investigative report that he had not been privileged to read.
The agency initially accepted and investigated all four allegations.
It also investigated additional incidents of alleged reprisal that were
raised in the course of its investigation of allegations (1) through (4).
On an unspecified date, appellant's medical school teaching stipend was
taken away;
On an unspecified date, appellant lost his geriatrics extended care
position, which resulted in the removal of physicians and other personnel
from his staff;
On an unspecified date, while serving as the chair of a selection
committee for the chief of staff position, the medical center director
forced him to select the incumbent chief of staff, rather than the
committee's proposed candidate; and
On an unspecified date, he was not selected as the primary care division
chief;
The agency completed its investigation and referred these allegations to
an Administrative Judge (AJ). Before the hearing commenced, the agency
moved to dismiss allegations (1) and (2), for failure to timely contact
an EEO counselor. Appellant first contacted an EEO counselor on August
3, 1995. The AJ determined that the January 1992-95 performance reports
and the April 1995 lock-out incident were untimely, and consequently
granted the agency's motion to dismiss. She nevertheless considered
the dismissed allegations as background evidence with respect to the
accepted allegations.
During the discovery process, appellant raised several more allegations
of reprisal, which the AJ accepted and ruled on:
On an unspecified date, he was not selected for a position at the agency's
medical facility in Reno, Nevada.
On an unspecified date following his transfer to the Temple, Texas medical
center, he was transferred from the "Gold Team," to the environmental
health unit.
At the conclusion of the hearing, the AJ issued a recommended decision
finding no discrimination. The agency subsequently adopted the AJ's
recommendation as its final decision. The AJ found that appellant failed
to establish a prima facie case of reprisal with respect to any of the
incidents at issue in allegations (3) through (10). She also found that,
even if appellant had established a prima facie case of reprisal, the
agency articulated legitimate and nondiscriminatory reasons for each
personnel action taken, and that appellant failed to show that any of
those articulated reasons were pretexts for reprisal.
Appellant makes no new contentions on appeal, and the agency requests
that we affirm the FAD.
The Commission finds that the AJ's recommended decision accurately
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that appellant failed to present evidence
that he timely contacted an EEO counselor with respect to allegations (1)
and (2), or that any of the agency's actions identified in allegations
(3) through (10) were in retaliation for appellant's prior EEO activity.
We discern no basis to disturb the AJ's findings and conclusions, which
were based on a detailed assessment of the record and the credibility
of the witnesses. See Gathers v. United States Postal Service, EEOC
Request No. 05890894 (November 9, 1989); Wrenn v. Gould, 808 F.2d 493,
499 (6th Cir. 1987); Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).
Therefore, after a careful review of the record, including appellant's
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
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 22, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations