01974227
03-29-2000
Clyde E. Bradford, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Clyde E. Bradford v. Department of Veterans Affairs
01974227
March 29, 2000
Clyde E. Bradford, )
Complainant, )
)
v. ) Appeal No. 01974227
) Agency No. 95-1869
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted by the Commission in
accordance with the provisions of 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. �1614.405).<1>
ISSUE PRESENTED
The issue presented is whether the agency discriminated against
complainant on the basis of his race (Black) when, on January 31, 1994,
his request for one hour of annual leave was denied.
BACKGROUND
In a complaint dated April 7, 1996, complainant, then a Fiscal
Accounts Clerk, GS-5, alleged that the agency discriminated against
him as delineated in the above-entitled statement "Issue Presented."
The agency conducted an investigation, provided complainant with a copy
of the investigative report, and advised complainant of his right to
request either a hearing before an EEOC administrative judge (AJ) or
an immediate final agency decision (FAD). It appears that complainant
did not respond.<2> On March 10, 1997, the agency issued a FAD finding
no discrimination. It is from this decision that complainant now appeals.
ANALYSIS AND FINDINGS
This case involves a complaint alleging employment discrimination based
on race. In any proceeding, either administrative or judicial, involving
an allegation of discrimination, it is the burden of the complainant to
initially establish that there is some substance to his or her allegation.
In order to accomplish this burden the complainant must establish a
prima facie case of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). This means that the complainant must present
a body of evidence such that, were it not rebutted, the trier of fact
could conclude that unlawful discrimination did occur.
The record reflects that complainant was absent from work on January 31,
1994. He called in to request leave, and his supervisor (Black) granted
the seven hours of accrued sick leave available to him. Complainant
requested one hour of accrued annual leave in order to have a total of
eight hours leave, but that request was denied. Complainant failed to
identify any similarly situated individual outside of his protected group,
race (Black), whom he believes received more favorable treatment with
regard to the grant or denial of leave. Neither did complainant submit
any other evidence from which discriminatory animus may be inferred.
Accordingly, a prima facie case of race discrimination is not established.
Assuming for the sake of argument that a prima facie case had been
established, the burden would shift to the agency to articulate a
legitimate, non-discriminatory explanation for its action. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard,
the agency need only produce evidence sufficient "to allow the trier of
fact rationally to conclude" that the agency's action was not based on
unlawful discrimination. Id. at 257. Here, the agency explained that
complainant's request for one hour of annual leave was denied because
complainant had a backlog of work which needed to be cleared on account
of an impending audit and further, that Fiscal Service employees
were requested not to use annual leave when an audit was pending.
Complainant has adduced no evidence to show that this explanation was
merely a pretext for race discrimination. See St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). Accordingly, complainant's claim
of race discrimination is not established.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 29, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________________ ________________________
Equal Employment Assistant Date
1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Complainant refused to participate in the investigation of his complaint,
and submitted no statement in support of his appeal.