0120065057
12-12-2008
Troy L. Lewis, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Troy L. Lewis,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200650571
Agency No. 200L-0635-2004104
Hearing No. 310-2005-00367X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 2, 2006, final decision concerning
his equal employment opportunity (EEO) complaint alleging 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., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
Complainant claimed that the agency discriminated against him on the bases
of race (African-American), color (brown), disability (post traumatic
stress disorder, migraine headaches, and hearing loss), and in reprisal
for prior protected activity when:
1. On October 1, 2004, the agency issued him a written reprimand;
and
2. On or after September 16, 2004, the agency denied his request
to change his tour of duty. 2
The record reveals that on June 9, 2004, complainant, a Patient Services
Assistant, GS-06, at the VA Medical Center in Oklahoma City, Oklahoma,
was found by a VA Police Officer in a room with two DVD players, a
monitor and several blank DVDs. The monitor displayed a frame from
a movie which had been released theatrically but which had not yet
been released on DVD. The officer suspected that someone was trying
to copy a pirated movie. Complainant's coworker told the officer that
the equipment belonged to complainant. A report was filed about this
matter and an investigation was conducted. Initially, it was suggested
that complainant be suspended for ten days without pay. Following the
investigation however, the discipline was lowered to a written reprimand
for "Willful idleness in the performance of his duties" because it was
determined that complainant was at the very minimum watching movies when
he was suppose to be working.
Further, the record reflects that complainant asked if he could transfer
to the swing shift which was from 4:00 p.m. to 12 a.m. Complainant's
request was denied. He was told that the agency wanted to keep the shift
open and that there were concerns about his reliability. Complaint then
filed the instant complaint.
Following an investigation by the agency, complainant requested a
hearing before an EEOC Administrative Judge (AJ). The AJ returned
the case to the agency after complainant failed to comply with the
AJ's orders. The agency then issued a final agency decision (FAD)
finding no discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision.
The Commission finds that assuming arguendo that complainant established
a prima facie case as to all bases, the agency articulated legitimate
nondiscriminatory reasons for its actions: complainant was issued a
reprimand because he was caught watching a DVD when he was supposed
to be working and potentially committing an illegal act. Further,
there is no evidence, in the record, that suggests that the disciplinary
action taken against complainant was contrary to established procedures
and guidelines.
Regarding complainant's change of duty request, the agency indicated
that his request was denied because complainant had demonstrated
previous unreliability, and management believed that he required
closer supervision than could be provided on a shift without an assigned
supervisor. The agency also maintained that it wanted to keep that shift
open so that it could continue monthly shift rotations. The Commission
finds that complainant has failed to provide any evidence that indicates
that the agency's articulated reasons were pretext for discrimination.
Accordingly, the preponderance of the evidence of record does not
establish that discrimination occurred. The agency's decision finding
no discrimination is therefore affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
12/12/08
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 Complainant also claimed that he had been discriminated against when
an employee improperly gained access to his medical records on January
8, 2004. The agency dismissed this claim on the grounds of untimely
EEO Counselor contact and the alternative grounds of failure to state a
claim. The Commission agrees that the EEO Counselor contact was untimely.
The record discloses that the alleged discriminatory event occurred on
January 8, 2004, but that complainant did not initiate contact with an
EEO Counselor until September 27, 2004, which is beyond the forty-five
(45) day limitation period. On appeal, complainant has presented no
persuasive arguments or evidence warranting an extension of the time limit
for initiating EEO Counselor contact. Accordingly, the agency's final
decision dismissing complainant's complaint on this basis is affirmed.
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0120065057
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036