Jeckonias Muragara, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.

Equal Employment Opportunity CommissionJul 27, 2000
01a03206 (E.E.O.C. Jul. 27, 2000)

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.