Joseph A. Poirrier, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 6, 2002
01992654_r (E.E.O.C. Aug. 6, 2002)

01992654_r

08-06-2002

Joseph A. Poirrier, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


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.