Gregory B. Bankston, Complainant,v.Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01985902 (E.E.O.C. Jan. 19, 2000)

01985902

01-19-2000

Gregory B. Bankston, Complainant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.


Gregory B. Bankston v. National Aeronautics and Space Administration

01985902

January 19, 2000

Gregory B. Bankston, )

Complainant, )

) Appeal No. 01985902

v. ) Agency No. NCN-95-MSFC-AD63

)

Daniel S. Goldin, )

Administrator, )

National Aeronautics and Space )

Administration, )

Agency. )

)

DECISION

The complainant timely initiated an appeal to the Equal Employment

Opportunity Commission (Commission) from the final decision of the

agency concerning his claim that the agency violated Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<0> The

appeal is accepted by the Commission in accordance with the provisions

of EEOC Order No. 960.001.

ISSUES PRESENTED

The issues presented herein are whether the agency discriminated against

the complainant based on race (Black) when: (1) he was suspended

for five days in July 1995; (2) he was not adequately assisted by the

personnel office regarding his request for a transfer in July 1995; and

(3) he is monitored more closely than similarly situated White employees.

BACKGROUND

The complainant filed a formal complaint in August 1995 in which he

raised what have been identified as Issues 1 through 3. Following an

investigation of this complaint, the complainant did not request a

hearing and the agency thereafter issued a final decision (FAD) on June

23, 1998, finding no discrimination. It is from this decision that the

complainant now appeals.

Issues 1 and 3

During the period in question, the complainant was employed as an

Electronics Technician, Experiment Development Division (EDD), at the

Marshall Space Flight Center in Alabama. The record reveals that, as a

result of attendance problems, the complainant was issued a letter of

instruction (LOI) by the Chief of EDD (Responsible Official 1, RO 1)

in November 1994. According to the LOI, the complainant's attendance

problems included frequent absences from the work site, and, in this

regard, it charges him with being absent without leave (AWOL) for 23

hours on three dates in October and November 1994. As a result of these

problems, the LOI states that the complainant would be required to sign

in and out; that any annual leave he took would have to be approved in

advance; and that any sick leave he took would have to be supported by

a doctor's certificate or it would be charged as AWOL.

The complainant was thereafter detailed out of EDD in early 1995, and,

according to his supervisor (RO 2) during the detail, there were four

consecutive days in March 1995 when the complainant failed to report

for work without requesting leave. The complainant thereafter returned

to EDD in April 1995. According to RO 1, because the complainant took

absences on May 10 and 12 that were not in accordance with the LOI, he

was charged with 15 hours of AWOL on those two dates. The complainant

was subsequently issued a five-day suspension in July 1995 charging him

with 49 hours of AWOL for his absences in March and May 1995.

According to the complainant, his absences in March 1995 were the

result of a death in his family and he asserts that these absences

were verbally approved by RO 2.<0> Regarding the May 1995 absences,

the complainant asserts that he presented a doctor's note to RO 1 for

the two days in question. The complainant also argues that, in the area

of attendance, he is monitored more closely than White co-workers and is

the only employee in EDD required to use a sign-in sheet. In response,

RO 1 acknowledged that the complainant was monitored more closely in

that area but explained that it was because of his attendance problems.

Issue 2

The complainant testified that, although he has made repeated requests for

reassignments, he has not received adequate assistance from the personnel

office in obtaining a transfer. According to a Personnel Management

Specialist (PM), there is no provision in the agency's Competitive

Placement Plan entitling an employee to be assigned wherever he wants.

The PM also noted that the complainant's serious attendance problems

made it difficult to reassign him.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation

of burdens and order of presentation of proof in a Title VII case

alleging discrimination is a three-step process. The complainant has

the initial burden of establishing a prima facie case of discrimination.

If the complainant meets this burden, then the burden shifts to the

agency to articulate some legitimate, nondiscriminatory reason for its

challenged action. The complainant must then prove, by a preponderance

of the evidence, that the legitimate reason articulated by the agency

was not its true reason, but was a pretext for discrimination. McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).

The complainant can establish a prima facie case of discrimination

based on race with regard to Issues 1 through 3 by showing that: (1) he

is a member of the protected group; and (2) he was treated differently

than a similarly situated nonmember of his protected group. See Potter

v. Goodwill Industries of Cleveland, 518 F.2d 864, 865 (6th Cir. 1975).

We find that the complainant can establish a prima facie case with

regard to Issue 3 to the extent that his attendance was monitored more

closely than that of his White co-workers. Regarding Issues 1 and 2, we

find the complainant cannot establish a prima facie because he has not

demonstrated that he was treated differently than a similarly situated

nonmember of his protected group.<0> For purposes of analysis, however,

the Commission shall assume that the complainant can establish a prima

facie case with regard to those two issues.

Now that the complainant has established a prima facie case, the agency

has the burden of articulating a legitimate, nondiscriminatory reason

for the challenged actions. Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 254 (1981). We find, based on the testimony of RO 1, RO

2, and the PM, that the agency has met this burden. As discussed, this

testimony indicated that the complainant was suspended for being AWOL on

several occasions and that his attendance was monitored more closely than

that of other employees because of his repeated problems in that area.

Additionally, this testimony indicated that the complainant's attendance

problems made it difficult for him to be reassigned.

At this point, the complainant bears the burden of establishing that the

agency's articulated reasons are a mere pretext for discrimination. The

complainant can do this either directly, by showing that a discriminatory

reason more likely motivated the agency, or indirectly, by showing that

the agency's proffered explanation is unworthy of credence. Id. at 256.

In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme

Court held that a fact finder is not required, as a matter of law, to

find discrimination whenever it finds that the employer's explanation is

not credible. The Court further made clear that a fact finder may find

discrimination in such circumstances. The critical factor is that a fact

finder must be persuaded by the complainant that it was discrimination

that motivated the employer to act as it did. According to the Court,

it is not sufficient "to disbelieve the employer; the fact finder must

believe the plaintiff's explanation of intentional discrimination." Id. at

519 (emphasis in original).

We find that the complainant has not established pretext. Specifically,

the evidence of record supports the agency's position that the

complainant had serious attendance problems and that he was, in fact,

AWOL on the occasions cited in support of his suspension. For these

reasons, and because the complainant has offered nothing that links the

challenged actions to his race, we find he has not established that he

was discriminated against.

CONCLUSION

It is the decision of the Commission to AFFIRM the FAD and find that

the complainant has not established that he was discriminated against

as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

Jan 19, 2000

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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

01 On 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.

02 According to RO 2, the complainant was absent between February

27 and March 3, 1995, due to a death in his family. He notes that these

absences were approved and that it was the complainant's failure to

report for work without explanation between March 7 and 10 that resulted

in him being charged with AWOL.

03 Although comparative evidence is only one method of establishing a

prima facie case, the complainant has not presented any other evidence

sufficient to support an inference of discrimination under the alleged

bases. See Enforcement Guidance on O'Connor v. Consolidated Coin Caters

Corp., EEOC Notice 915.002 (September 18, 1996).