01971297
04-28-1999
Hilton E. Moore, Appellant, v. Robert E. Rubin, Secretary, U.S. Department of Treasury, Agency.
Hilton E. Moore, )
Appellant, )
) Appeal No. 01971297
v. ) Agency No. 95-2318
) EEOC Nos. 310-96-5249X
Robert E. Rubin, ) 310-96-5625X
Secretary, ) 310-96-5626X
U.S. Department of Treasury, ) 310-96-5627X
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against him in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission accepts
this appeal in accordance with EEOC Order No. 960.001.
Appellant filed a formal complaint of discrimination in which he claimed
discrimination on the bases of race (Caucasian) and reprisal (prior EEO
activity), when: (1) he was denied overtime pay for working overtime
on May 2, and 3, 1995; (2) he was forced to work overtime on May 9,
1995, and (3) he received threatening remarks from a coworker that were
condoned by management. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested a hearing before an Equal Employment Opportunity Commission
administrative judge (AJ). A hearing was conducted on September 24, 1996.
On September 25, 1996, the AJ issued a recommended decision (RD) finding
no discrimination. With respect to appellant's allegations regarding
overtime, the AJ concluded that appellant failed to establish a prima
facie case of discrimination on either bases in that he failed to
identify a similarly situated individual not in his protected classes
who had clocked out after their shift had ended on May 2 or 3, but
had received overtime. Furthermore, appellant was the only individual
drafted to work on May 9, 1995. With respect to appellant's complaint
regarding the threatening statements made by a fellow police officer
(Black), the AJ found that there was unrebutted testimony that appellant
had conflicts with other police officers as well.
Assuming appellant had established a prima facie case, the AJ found that
the agency had articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, the agency provided evidence that employees
are paid overtime in 15 minute increments if they are still at the
facility in the ready room, canteen or smoking area. Furthermore,
they are supposed to ensure that a member of management knows that
they are waiting out the reminder of the overtime period. However,
the AJ found that on the days in question, appellant �bagged out� at
19:02 and 19:01 respectively. Thus, he was not paid for any overtime.
With respect to appellant's allegation regarding being forced to work on
May 9, 1995, testimony revealed that twelve people, as opposed to eight
as appellant claimed, were required for that day's work. With respect
to appellant's contention regarding threatening statements from a fellow
employee which were condoned by management, the AJ found that appellant
and the fellow employee were counseled, and both assured management that
they could work togther.
The AJ also found that appellant had failed to provide evidence which
would place the agency's articulated reasons in dispute. Furthermore,
he found that appellant failed to prove his ultimate burden, that the
agency's actions were based upon a discriminatory animus. Specifically,
the AJ found that the decision maker on the overtime issue followed proper
procedures, and there was no evidence that the incidents involved were
motivated by appellant's race or prior EEO activity. In sum, the AJ
found that appellant was not discriminated against, as alleged.
On October 31, 1996, the agency issued a final decision adopting the AJ's
finding of no discrimination. It is from this decision that appellant
now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
The Commission has reviewed the parties' statements on appeal and discerns
no basis in which to disturb the AJ's finding of no discrimination.
Specifically, appellant argues that the AJ failed to rule on his Motion
to Remand the Complaint for a Supplemental Investigation which was made
orally during the hearing. Appellant supplied a written Motion to Remand
as part of his appeal, and therein argued that the agency had failed to
conduct a detailed investigation which would have allowed appellant to
have established a prima facie case. We find that the AJ's denial of
appellant's Motion to Remand is contained in the Recommended Decision
and we disagree with appellant's argument on appeal that the AJ erred in
his decision. Specifically, we find that prior to the hearing, appellant
failed to raise an objection to the substance of the investigative file.
Indeed, in a letter from appellant's attorney to the AJ dated May 28,
1996, appellant's attorney acknowledged that, �based upon our review
of the Investigative File, we do not anticipate the need for further
discovery prior to the hearing.� Finally, the agency moved ahead with
legitimate, nondiscriminatory reasons for its actions assuming appellant
had established a prima facie case. Accordingly, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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 this
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 this 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 this 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 this 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:
April 28, 1999
___________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations