Aaron A. Bobo, Appellant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionSep 2, 1999
01975272 (E.E.O.C. Sep. 2, 1999)

01975272

09-02-1999

Aaron A. Bobo, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Aaron A. Bobo, )

Appellant, )

) Appeal No. 01975272

v. ) Agency No. A-96-1013

)

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

)

DECISION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning his Equal Employment Opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

Appellant alleges that he was discriminated against on the bases of race

(Black) and sex (male) when his request to work two hours of compensatory

time on a high priority project was denied. The appeal is accepted

in accordance with EEOC Order No. 960.001. For the following reasons,

the agency's decision is AFFIRMED.

The record reveals that during the relevant time, appellant was

employed at the agency's United States Attorney's Office in Los

Angeles, California. Appellant was a Special Assistant, GS-12,

assigned to the Financial Litigation Unit, a subdivision of the Civil

Department. Believing he was discriminated against as referenced above,

appellant sought EEO counseling and subsequently filed a complaint

on April 5, 1996. At the conclusion of the investigation, appellant

requested that the agency issue a final decision. The FAD concluded

that appellant failed to establish that the agency's legitimate,

nondiscriminatory reason for denying his request for compensatory time

was, more likely than not, a pretext for either race or sex based

discrimination. It is from this decision appellant now appeals.

On appeal, appellant reiterates his allegation of discrimination.

The agency requests that we affirm its FAD.

Based on the standards set forth in McDonnell Douglas v. Green, 411

U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253-256 (1981) and St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993), the Commission finds that appellant established

prima facie cases of discrimination because similarly situated

employees outside of appellant's protected classes were granted their

requests for compensatory time. The Commission further finds that the

agency articulated a legitimate, nondiscriminatory reason for denying

appellant's request, namely that appellant did not request compensatory

time in compliance with the office's internal policy. We agree with

the agency that appellant failed to prove that, more likely than not,

his failure to follow the office's policy was not the real reason his

request was denied. Moreover, there is insufficient evidence in the

record to support a finding that the agency's action was motivated by

discriminatory animus towards appellant's race or sex.

Therefore, after a careful review of the record, including appellant'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 (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

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:

September 2, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations