01972843
02-11-2000
Jesse Myers, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Jesse Myers v. Department of Agriculture
01972843
February 11, 2000
Jesse Myers, )
Complainant, )
) Appeal No. 01972843
v. ) Agency Nos. 930610
) 910520
Daniel R. Glickman, ) Hearing Nos. 350-94-8217X
Secretary, ) 350-94-8256X
Department of Agriculture, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his equal employment opportunity (EEO) complaints of
unlawful employment discrimination on the bases of race (Black), sex,
(male) and reprisal (prior EEO activity), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> Complainant alleged he was discriminated against when he
was: (1) suspended for ten days from May 17, 1993 to May 26, 1993,
and subjected to continued hostile work environment harassment; and
(2) subjected to poor working conditions, denied training and duties,
including the collateral assignments of civil rights coordinator and
environmental coordinator in April 1991. The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
Following a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ), the AJ issued a Recommended Decision
(RD), finding no discrimination. The agency's FAD incorporated and
adopted the AJ's findings of no discrimination. It is from this decision
that complainant now appeals.
The record reveals that during the relevant time, complainant was
employed as an agricultural management specialist, GS-475-11, at
the agency's Farmers Home Administration (FmHA), Phoenix, Arizona.
The AJ concluded that complainant established a prima facie case of
race discrimination and reprisal with respect to the above issues.<2>
Regarding the suspension, the AJ determined that complainant failed to
establish that the agency's articulated reasons for its actions were a
pretext for race discrimination and reprisal. Complainant was suspended
for destruction of government property, unauthorized use of a government
credit card, and creating a hostile work environment for co-workers.
With respect to the second issue, the AJ concluded that complainant
failed to establish that the agency's articulated reasons for its actions
were a pretext for unlawful retaliation. The record revealed that the
collateral assignments were removed from complainant's authority because
the State Director was concerned about performance in the Farmers Program,
and wanted complainant to focus on Farmers Program work.
Concerning the issue of denial of "Fundamentals of Instruction" training,
the AJ concluded that this issue had become moot because complainant
eventually received this training.
Finally, regarding poor work conditions, which specifically are complaints
about complainant's supervisors' enforcement of office policies concerning
telephone use, communication with borrowers, time and attendance, and
breaks, the AJ determined that complainant failed to establish that
the agency's articulated reasons for its actions were a pretext to mask
unlawful reprisal.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. However, the AJ did not address
complainant's allegation of sex discrimination with respect to his
suspension. The Commission finds that complainant was not discriminated
against based on sex because he failed to establish that the agency's
articulated reason for suspending him was pretextual. We note that
complainant failed to present evidence that any of the agency's actions
were in retaliation for his prior EEO activity or were motivated by
discriminatory animus toward complainant's race and sex.
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
Administrative Judge 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). We discern
no basis to disturb the AJ's findings of no discrimination under this
standard of review. Therefore, after a careful review of the record
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
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:
February 11, 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
1On 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.
2At the start of the hearing, the AJ framed the issues as including only
the bases of race and reprisal discrimination.