01a03206
07-27-2000
Jeckonias Muragara, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
Jeckonias Muragara v. Department of Defense
01A03206
July 27, 2000
.
Jeckonias Muragara,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Finance and Accounting Service),
Agency.
Appeal No. 01A03206
Agency No. DFAS-DE-DENV-96-032
Hearing No. 320-97-8371X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final action
concerning his complaint of unlawful employment discrimination 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 final agency
action.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
the agency discriminated against him on the bases of race (Black-African)
and reprisal (prior EEO activity) when he reported a racially derogatory
remark directed at him by a co-worker and was terminated from his
position.
BACKGROUND
Complainant, employed by the agency as a Stay-in-School Temporary Clerk
in the Student Temporary Employment Program at the time of the alleged
discriminatory events, filed a formal complaint on August 16, 1996,
in which he alleged what has been identified as the issue presented.
At the conclusion of the investigation, complainant received a copy of
the investigative report and, by letter dated April 19, 1997, requested
a hearing before an EEOC Administrative Judge (AJ). After the hearing,
held on November 16, 1999, the AJ issued a finding of no discrimination.
In its final action, the agency adopted the AJ's findings. This appeal
followed.
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 AJ 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, including complainant's arguments
on appeal, the agency's response thereto, and arguments and evidence
not specifically addressed in this decision, the Commission finds that
the AJ's decision summarized the relevant facts and appropriately found
that complainant failed to prove that he was discriminated against on
the bases of race and reprisal. We note, however, that the AJ concluded
that complainant could not prevail on his claim of racial discrimination
because he failed to compare himself to similarly situated individuals
not in his protected class, and therefore, did not establish a prima
facie case of discrimination. But comparative evidence is only one way
of establishing a prima facie case, and there are other methods of making
such a showing. See O'Connor v. Consolidated Coin Caterers Corp., 116
S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice 915.002 (September 18, 1996). In this case,
complainant offered no evidence, comparative or otherwise, to establish
a prima facie case of racial discrimination. Therefore, we discern no
basis to disturb the AJ's decision. As such, we AFFIRM the agency's
final action regarding this case.
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:
______________________________
Carlton M. Hadden, Acting Director
Office of Federal Operations
July 27, 2000
__________________
Date
1 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.