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).