01a02880
07-14-2000
David L. Nelson, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
David L. Nelson v. Department of Justice
01A02880
July 14, 2000
David L. Nelson, )
Complainant, ) Appeal No. 01A02880
) Agency No. P-96-8924
v. ) Hearing No. 160-97-8523X
)
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
____________________________________)
DECISION
On March 3, 2000, David L. Nelson (hereinafter referred to as complainant)
initiated a timely appeal to the Equal Employment Opportunity Commission
(Commission) with regard to his complaint of discrimination in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> Accordingly, the appeal is accepted by this Commission
in accordance with 64 Fed.Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405).
The issue on appeal is whether complainant proved, by a preponderance of
the evidence, that he was discriminated against on the bases of his race
(African-American), and sex (male) when 1. he was accused of fraud and
abuse, and 2. he did not receive a promotion to the GS-7 level.
Complainant, a GS-6 Accounting Technician with the agency's Bureau
of Prisons, filed a formal EEO complaint in May 1996, raising the
above-referenced allegation of discrimination. The agency accepted
complainant's complaint for processing, and conducted an investigation.
Complainant requested an administrative hearing in the matter.
After providing the parties with the appropriate notification, the
Administrative Judge (AJ) issued a decision, without a hearing, finding
that complainant had not been subjected to discrimination as alleged.
Specifically, the AJ found that complainant failed to establish a prima
facie case of discrimination, and that, even assuming complainant had
done so, he failed to show that the agency's articulated reasons for its
actions were pretextual. The agency, in a decision dated January 27,
2000, implemented the AJ's decision. It is from this decision that
complainant now appeals.
After a careful review of the record, the Commission finds that the
AJ correctly determined that complainant was not subjected to race and
sex discrimination with regard to the matters alleged. The Commission
notes that while the AJ stated, in part, that complainant failed
to establish a prima facie case because he did not show that he was
treated differently than similarly situated employees, complainant must
only present evidence which, if unrebutted, would support an inference
that the agency's actions resulted from discrimination. See O'Connor
v. Consolidated Coin Caters Corp., 116 S.Ct. 1307 (1996); Enforcement
Guidance on O'Connor v. Consolidated Coin Caters Corp., EEOC Notice
No. 915.002, n. 4 (September 18, 1996). Nevertheless, the AJ correctly
determined that complainant failed to show that the matter cited in issue
1 constituted an adverse action. Specifically, the named management
officials averred that complainant was not accused of fraud and abuse,
and that no adverse action was proposed or taken against complainant.
Further, with regard to the denial of promotion, the AJ properly found
that complainant did not establish that the agency's articulated reason
for the action, that is, complainant's failure to perform at the GS-7
level, was a pretext for prohibited discrimination. We therefore
discern no basis to disturb the AJ's finding that complainant was not
discriminated against based upon his race and sex.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
__07-14-00_______ __________________________________
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 of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________ __________________________
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.