David W. Harding, Complainant,v.Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.

Equal Employment Opportunity CommissionMay 12, 2000
01975634 (E.E.O.C. May. 12, 2000)

01975634

05-12-2000

David W. Harding, Complainant, v. Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.


David W. Harding v. Department of Justice

01975634

May 12, 2000

David W. Harding, )

Complainant, )

) Appeal No. 01975634

v. ) Agency No. I-94-6473, I-95-6618, I-95-6706

) Hearing No. 210-96-6329X, 210-96-6330X

Janet Reno, ) 210-96-6331X

Attorney General, )

Department of Justice )

(Immigration and )

Naturalization Service), )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the bases of sex (Male), and reprisal

(prior EEO activity) in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405). For the following reasons, the Commission

AFFIRMS the agency's final decision.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Deportation Officer at the agency's Chicago, Illinois facility.

Believing himself to be a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a series of formal complaints alleging

that he was discriminated against when: (1) his request to attend the

"Cuban Review Panel" was approved on June 13, 1994, the same day the

detail began;<2> (2) he was detailed to the ADIT (Information Officer)

Section on July 28, 1994, despite having been approved for leave during

the same time period;<3> (3) he was ordered to perform an "alien custody

detail" on December 30, 1994;<4> (4) he was subjected to a random drug

test on July 27, 1994;<5> (5) he received an annual 1994-1995 performance

rating of "Excellent" rather than "Outstanding" on April 26, 1995;<6>

and (6) he was included on a detail list to perform Detention Escort

duties on April 27, 1995.<7>

The agency accepted the complaints for investigation. At the conclusion

of the investigation, complainant received a copy of the investigative

reports and requested a hearing before an EEOC Administrative Judge

(AJ). Following a hearing, the AJ issued a recommended decision finding

no discrimination.

The agency's final decision implemented the AJ's recommended decision.

From the agency's final decision, complainant brings the instant appeal.

ANALYSIS AND FINDINGS

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge will be upheld if supported by substantial evidence

in the record. Substantial evidence is defined as "such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion."

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). A finding regarding whether or not

discriminatory intent existed is a factual finding. See Pullman-Standard

Co. v. Swint, 456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that the AJ's

recommended decision summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present significant evidence that any of the agency's actions

were in retaliation for complainant's prior EEO activity or were motivated

by discriminatory animus toward complainant's sex. For example, with

respect to the claim that complainant had been required to submit

to a drug test in retaliation for his prior EEO activity, the agency

introduced unrebutted evidence that complaint was tested only because

agency officials who had no knowledge of complainant's EEO activities had

randomly selected his name from a list of agency employees. The agency

showed complainant's other claims to be similarly without substance.

We discern no basis to disturb the AJ's recommended decision.

Therefore, after a careful review of the record, including arguments

and evidence not specifically addressed in this decision, we affirm the

agency's final decision.

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:

May 12, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.

2Complaint No. I-94-6473, filed July 11, 1994.

3Complaint No. I-94-6473, filed July 11, 1994.

4Complaint No. I-95-6618, filed January 18, 1995.

5Complaint No. I-95-6706, filed June 29, 1995.

6Complaint No. I-95-6706, filed June 29, 1995.

7Complaint No. I-95-6706, filed June 29, 1995.