Jesse Myers, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionFeb 11, 2000
01972843 (E.E.O.C. Feb. 11, 2000)

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.