01984569
02-09-2001
Willie J. Hamilton, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Willie J. Hamilton v. Dept. of Veterans Affairs
01984569
February 9, 2001
.
Willie J. Hamilton,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01984569
Agency No. 96-1550
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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was harassed on the
bases of race (Black) and reprisal (prior EEO activity) when on February
28, 29 and April 9 and 10, 1996: (1) he was placed on AWOL status; (2)
received a letter requesting a meeting to discuss his AWOL status; and
(3) he was telephoned at home to inquire about his leave status.
Complainant was hired as a temporary part-time Housekeeping Aide in
Environmental Management Service (EMS) on February 7, 1996. Complainant
alleged that three responsible management officials harassed him because
of his race and prior EEO activity.<2>
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on May 21, 1996.
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 a hearing. However, after complainant failed to appear for a
pre-hearing conference, the Administrative Judge remanded the matter to
the agency for a Final Agency Decision based on the investigative record.
The record indicates the following. While complainant failed to identify
one similarly situated individual, outside his protected classes who
received more favorable treatment, the record shows that in 1995, 23
White, 29 Black and 6 Hispanic employees were given AWOLs. The record
shows that in 1996, 22 White, 27 Black and 6 Hispanic employees were
given AWOLs. The record further shows that the named responsible
management officials were aware of complainant's prior EEO activity.
Complainant states that the harassment began when he received a summons
for jury duty on February 15, 1996. He states that he told his supervisor
about the jury duty and his supervisor attempted to get complainant to
work anyway. In addition, complainant alleges that on February 28,
1996 (the day before jury duty) his supervisor told him he could not go
to jury duty because he was short handed. Complainant also alleges that
he received telephone calls from two different supervisors at home on
February 29, 1996 and March 1, 1996 telling him that he was expected to
come to work after jury duty.
On March 12, 1996, complainant contacted his supervisor, stating that
his son had been in an accident. He was excused from work that day.
On March 13, 14, 18, 19, 20, 21, 25, 26, 27 and 28, 1996 complainant
did not report to work, nor did he contact his supervisor or otherwise
request leave.
On March 19, 1996, complainant's supervisor telephoned him at home to
discuss his leave status. Complainant did not explain his absence, but
stated that he would phone or come in to discuss it with his supervisor
on March 20, 1996. Complainant did not phone or report to work on March
20, 1996.
Complainant testified that on March 22, 1996, he learned about an
Equal Employment Opportunity Commission (EEOC) decision that ordered
him reinstated as a full-time Housekeeping Aid, retroactive to 1989.
Complainant claims that he telephoned his supervisor that day and quit
his job as a part-time Housekeeping Aid. The supervisor denies ever
receiving such a telephone call.
On April 1, 2, 3, and 4, 1996, complainant did not report to work, nor
did he contact his supervisor or otherwise request leave. He did not
submit documentation for his prior unapproved leave.
On April 8, 1996, complainant was scheduled to begin working as
a full-time Housekeeping Aid. On April 9, 1996, complainant and
his second-level supervisor (S2) met to discuss his AWOL status.
S2 explained complainant's right to union representation and asked
complainant to read and sign the letter notifying him of his rights.
Complainant refused to sign the letter, insisting that he was not eligible
for union representation.
On April 11, 19, 23, and May 2, 1996, complainant failed to appear at
appointments scheduled to discuss his leave status.
On May 15, 1996, the Division Manager sent complainant a letter denying
complainant's requests for leave from May 20 to May 30, June 3 to June
14, June 30 to July 14, and August 5 to August 24, 1996. However,
she approved complainant's request for leave from May 5 to 18, 1996.
In addition, the Division Manager sent complainant a letter setting forth
the agency's leave procedures in detail, and notified complainant that
he was expected to follow them.
In its FAD, the agency concluded that complainant made out a prima
facie case of race discrimination and reprisal. In response to the
allegations, the agency maintained that it gave complainant numerous
opportunities to comply with agency leave procedures before charging
him AWOL. The agency documented many unapproved absences, yet continued
to offer complainant approved leave if only he would submit medical
documentation and SF-71 requests for leave after the fact. Complainant
repeatedly failed to do so.
In addition, the agency denies telephoning complainant as many times as
he alleges or for the reasons he alleges. The responsible management
officials testified that they were inquiring about his leave status
and attempting to arrange meetings with complainant regarding his leave
status. The agency also denies sending complainant 15-20 letters as he
asserts. The record shows only two letters were sent to complainant.
One letter notified complainant that he had been charged AWOL, and
another letter instructed complainant on the leave procedures that he was
expected to follow. The agency denies that the letters were motivated
by complainant's race or prior EEO activity, but rather his unexplained
absences.
Furthermore, complainant's supervisor denies instructing him to report
to work instead of jury duty or in addition to jury duty. The record
shows that complainant reported to jury duty and not to work on the days
he was scheduled for jury duty. Given the statements above, the agency
found that the responsible management officials satisfied their burden in
articulating a legitimate, non-discriminatory reason for their actions.
Lastly, the agency determined that complainant failed to prove that the
agency's articulated legitimate, non-discriminatory reasons for its
employment actions were pretextual or motivated by discriminatory or
retaliatory animus. Specifically, while complainant asserts that he quit
his job as a part-time Housekeeping Aid on March 22, 1996 (and therefore
had no obligation to report to work until April 8, 1996), there is no
evidence in the record to corroborate this assertion. In addition,
complainant's supervisor denied such assertion and testified that had
complainant verbally resigned, he would have required complainant to
complete the agency's personnel processing for resignations.
Complainant also asserts that his supervisor harassed him by asking
him to sign a notification of his right to union representation in a
meeting concerning his attendance problem. While complainant's supervisor
confirms that he requested complainant's signature on the notification of
union representation form, he denies attempting to coerce complainant into
�falsifying documents� as he alleges. The supervisor testified that he
was required to present complainant with a written notice of his right
to union representation. He further denies complainants allegation
that he advised complainant to falsify court documents regarding his
jury duty, and complainant has presented no evidence to corroborate
this allegation. Lastly, the agency found that complainant presented
no evidence or argument that the telephone calls, letters, or meetings
with him regarding his unexplained absences were related to his race
or prior EEO complaints. Accordingly, based upon the record evidence,
the agency found that complainant failed to sustain his overall burden
of persuasion with respect to his claims.
Complainant raises no argument on appeal. The agency did not provide
a statement in opposition to the appeal.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), assuming
complainant established a prima facie case of race discrimination and
reprisal, we agree with the agency in finding that complainant failed
to prove pretext or discriminatory animus.
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 (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 9, 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.
2Complainant filed an EEO complaint in 1989 which was decided in favor
of complainant in 1996. The allegations of the 1989 complaint involved
the non-selection of complainant for the position of Housekeeping Aid
based upon race and reprisal.