01990129
09-25-2001
William Pledger, Jr., Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
William Pledger, Jr. v. Department of Veterans Affairs
01990129
September 25, 2001
.
William Pledger, Jr.,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01990129
Agency No. 97-2260
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. Complainant alleged that he was discriminated
against on the basis of reprisal for prior protected activity under Title
VII when he was issued a reprimand for allegedly violating Automatic Data
Processing (ADP) security procedures and was not given proper training
with regard to ADP security.
The record reveals that during the relevant time, complainant was
employed as a Supervisory Clerk in the Department of Environmental
Management Services (EMS) at the agency's Veterans Affairs Medical
Center, North Little Rock, Arkansas, facility. In late 1996, an
audit was done of the agency's information security program and it was
discovered that complainant was among approximately sixty employees
who had allegedly accessed restricted hospital records. Specifically,
the agency states complainant accessed the records of his supervisor
(S1), twenty-five other employees, and himself. On December 4, 1996,
complainant was contacted by an information security officer who requested
that complainant explain his reason for accessing the records of S1.
Complainant responded that he was checking S1's eligibility status in
case S1 was admitted to the hospital. On January 3, 1997, complainant
met with S1 and explained that he was not aware that he had violated
any policies or procedures with regard to restricted information when he
accessed the records at issue, as he had never received the mandatory
training for use of the ADP system. Complainant was then issued a
reprimand, on April 3, 1997, for accessing the restricted records.
Complainant refused to sign the reprimand.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on August 4, 1997.
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. Complainant
requested that the agency issue a final decision. In its FAD, the agency
concluded that it established a legitimate, non-discriminatory reason for
its actions which complainant failed to show was pretextual or unworthy
of belief. On appeal, complainant contends that the agency made numerous
factual errors in the FAD and that he never received training on the
ADP system. The agency requests that we affirm its FAD.
To establish a prima facie case of reprisal discrimination, complainant
must show that he engaged in prior protected activity, that acting agency
officials had knowledge of complainant's EEO complaints, and that the
adverse agency action took place at such a time as to establish an
inference of retaliatory motive. Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976); Manoharan v. Columbia University
College of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988).
The required 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, complainant must present proof that the acting agency
official(s) took the adverse 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.
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for reprisal. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995). Supervisors and managers generally have broad discretion
to set policies and carry out personnel decisions, and should not be
second-guessed by the reviewing authority absent evidence of unlawful
motivation. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 259 (1981); Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997); Kohlmeyer v. Department of the Air Force,
EEOC Request No. 05960038 (August 8, 1996).
After reviewing the record, we find that, assuming, arguendo, complainant
established a prima facie case of reprisal discrimination, complainant
has failed to show that the agency's legitimate, non-discriminatory
reason for its action was mere pretext. Namely, that the reprimand
issued complainant was an appropriate disciplinary action for the
violation of ADP security procedures, and that this matter was handled
in the same manner as similar security violations. In reaching this
conclusion, we note that complainant has failed to present any persuasive
evidence that the adverse action in question was a result of his prior
protected activity. Further, the record establishes that a large number
of employees were found to have accessed restricted records, and in
his affidavit complainant identifies a number of those employees who
received similar reprimands. Thus, complainant has not shown that any
similarly situated individuals, who had not engaged in prior protected
activity, were treated more favorably than he. As to complainant's
arguments regarding the agency's failure to adequately train him on use
of the ADP system, we find that the record contains affidavits from a
number of employees who state that they also did not receive training
on ADP security. Given that the employees, regardless of whether they
engaged in prior protected activity or not, were all treated the same
in this matter, we find that complainant has failed to show that he was
not given proper training as reprisal for engaging in prior EEO activity.
Therefore, after a careful review of the record, including complainant's
contentions on 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 (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
September 25, 2001
__________________
Date