01992654_r
08-06-2002
Joseph A. Poirrier v. Department of Veterans Affairs
01992654, 01991025
August 6, 2002
.
Joseph A. Poirrier,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 01992654; 01991025
Agency No. 96-2220
DECISION
Complainant filed appeals with this Commission from two final agency
decisions dated October 23, 1998, and January 22, 1999 dismissing his
complaints of unlawful employment discrimination in violation of the
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq. and Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the timely appeals for review, and consolidates
the cases pursuant to its discretion under 29 C.F.R. � 1614.606. The two
complaints, captioned above, were both filed on August 6, 1996.
In the first of two complaints, complainant claimed that he was
discriminated against on the bases of age and in reprisal for prior
protected activity when:
on April 26, 1996, the Sheridan Medical Center refused to rehire him,
or to obtain a transfer for him to another VA Medical Center and the
agency terminated him, failed to reinstate, reassign or transfer him,
and the settlement agreement of June 20, 1995 deprived him of future
retirement benefits through the failure to provide for retirement
service credit for the time he was on LWOP and receiving workers
compensation benefits;
on April 26, 1996, the Sheridan Medical Center's failure to rehire or
reinstate him; and the Sheridan Medical Center's failure to reassign
or obtain a transfer for him to another federal government position; and
In a separate complaint, complainant raised the following claim:
(3) complainant was subjected to harassment on April 26, 1996.
The record shows that on June 13, 1997, the agency issued a final
decision dismissing claim (1) (termination in April 1996/issue of
retirement service credit for the time he was on LWOP and receiving
workers compensation benefits) on the grounds that it addressed the same
matters pending in federal district court and on the alternative grounds
of failure to state a claim.<1> The agency accepted claim (2) (Sheridan
Medical Facility's failure to rehire and reinstate him/failure to obtain
a transfer for him to another federal position) for investigation.
On January 22, 1999, the agency issued a FAD regarding claim (2), finding
no discrimination. This claim is the subject of Appeal No. 01992654.
In a separate FAD dated October 23, 1998, the agency issued a decision
dismissing claim (3) on the grounds of failure to cooperate. This claim
is the subject of Appeal No. 01991025.
Claim (2) - Appeal No. 01992654
The record reveals that during the relevant time, complainant, an
Electrician Technician at the VA Medical Center in Sheridan, Wyoming, was
in an inactive employment status following his claim with the Department
of Labor (DOL), Office of Workers Compensation Program (OWCP) for a
work related stress condition which began in 1990. The records reveals
that complainant's claim was approved by the OWCP and he was enrolled
in treatment and rehabilitation services under the management of OWCP.
While complainant was on compensated leave, he resolved prior EEO claims
through a settlement agreement signed on April 26, 1995. The record
indicates that the agency removed complainant from employment permanently
on April 26, 1996 because according to the April 26, 1995 settlement
agreement, complainant did not provide a medical release for his return
to active employment by the OWCP after having been on compensated leave
for over four years. Complainant voiced no concerns about his agreement
until he consulted with the Office of Personnel Management concerning his
retirement benefits and discovered that his last year as an employee with
the agency did not count towards his retirement because he was receiving
benefits from OWCP. Complainant then sought to have the agency reinstate
him for one year in order to receive full retirement benefits.
Upon completion of the investigation, complainant requested a final
agency decision without a hearing before an EEOC Administrative Judge.
Pursuant to complainant's request, the agency issued a decision dated
January 22, 1999, determining that complainant established a prima facie
case of discrimination based on age and retaliation. The agency also
found that a legitimate non-discriminatory reason had been articulated.
It further found that complainant failed to show that the agency's
reasons were a pretext for discrimination.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, the Commission finds that the evidence supports a
determination that the agency articulated legitimate, non-discriminatory
reasons for its employment actions. The Commission further finds that
complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, we find the agency properly found no discrimination
regarding claim (2). The agency's decision is therefore AFFIRMED.
Claim (3) - Appeal No. 01991025
On October 23, 1998, the agency issued a final decision dismissing claim
(3) on the grounds of failure to cooperate. Specifically, the agency
stated that it sent complainant an affidavit request for complainant
to answer on September 28, 1998, with a notice of proposed dismissal.
Although the agency received complainant's response on October 13, 1998,
the agency stated that complainant failed to address the harassment
issue of April 26, 1996 with specificity and detail. Therefore, the
agency dismissed claim (3) for failure to cooperate.
On appeal, complainant argues that sufficient information exists in the
record for an adjudication of his complaint. Complainant claims that his
complaint sets forth with sufficient specificity, information upon which
the investigation could have proceeded. In response, the agency states
its decision is correct, and requests that we affirm its final action.
Upon review, the Commission finds that the agency improperly dismissed
complainant's harassment claims for failure to cooperate. The regulation
set forth at 29 C.F.R. � 1614.107(a)(7) provides for the dismissal
of a complaint where the agency has provided the complainant with a
written request to provide relevant information or otherwise proceed
with the complaint, and the complainant has failed to respond to the
request within 15 days of its receipt or the complainant's response does
not address the agency's request, provided that the request included a
notice of the proposed dismissal.
We note the record contains no copy of the September 28, 1998
interrogatory request nor does it include a notice of proposed dismissal.
Furthermore, complainant did provide a response which addressed the
agency's request.<2> While this response may not have been deemed
satisfactory by the agency, we find that the purported unsatisfactory
submission of this response does not warrant dismissal under 29 C.F.R. �
1614.107(a)(7) for failure to cooperate.
Though the Commission determines that complainant's complaint was
improperly dismissed for failure to cooperate, we nevertheless advise
complainant to cooperate with the agency in the continued processing
of his complaint, or face possible dismissal in the future for failure
to cooperate.
Accordingly, the agency's decision dismissing claim (2) in Appeal
No. 01992654 is AFFIRMED. The agency's decision dismissing claim (3)
in Appeal No. 01991025 is REVERSED. Claim (3) is REMANDED to the agency
for further processing in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim (Claim (3)-Appeal
No. 01991025) in accordance with 29 C.F.R. � 1614.108. The agency shall
acknowledge to the complainant that it has received the remanded claim
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file and
also shall notify complainant of the appropriate rights within one hundred
fifty (150) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
August 6, 2002
__________________
Date
1There is no evidence reflecting that complainant has filed an appeal
from the agency's June 13, 1997 decision, which accepted claim (2) for
investigation, but dismissed claim (1) for the reasons identified above.
We therefore determine that it is unnecessary to address further claim
(1).
2On appeal, complainant submitted copies of his October 8 and 9, 1998
response to the agency's September 28, 1998 request letter.