01986556
05-31-2000
Khalif Muhammad, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Khalif Muhammad v. Department of Veterans Affairs
01986556
May 31, 2000
Khalif Muhammad, )
Complainant, )
)
v. )
) Appeal No. 01986556
Togo D. West, Jr., ) Agency No. 98-0235
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from a final agency decision (FAD) concerning
his allegation that the agency discriminated against him on the bases
of his race and color (Black) 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 by the Commission in accordance with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405). For the reasons
set forth below, we AFFIRM the FAD.
ISSUE PRESENTED
The issue presented is whether complainant proved that he was
discriminated against, as referenced above, when he was detailed from
his duties as a police officer in the Police and Security Section and
assigned to work in the Engineering Section.
BACKGROUND
Complainant filed his formal complaint in September 1997. Following an
investigation, he was provided a copy of the investigative file and
notified of his right to request a hearing before an EEOC Administrative
Judge (AJ). According to the record, complainant did not respond to
the notice. Therefore, the agency issued a FAD, dated July 31, 1998,
that found complainant had not been discriminated against. It is from
this decision that complainant now appeals.
Complainant is a police officer at the agency's Medical Center in Long
Beach, California. During the time in question, he was supervised
by A-1, Chief of Police of the Security Service (Caucasian). The
record indicates that, while conducting an investigation concerning
unauthorized identification badges, B-1, an inspector from the agency's
Office of Security and Law Enforcement in Washington, D.C., determined
that a number of police officers in the Long Beach office had obtained
unauthorized badges.<2> B-1 discovered from a private badge company that
a badge had been mailed via UPS to complainant's home address. He also
determined that a Black detective, C-1, had signed an authorization for
at least one badge.
On June 26, 1997, B-1 and the Chief of Service, B-2, interviewed
complainant. B-2 told complainant that he was conducting a criminal
investigation and that H-1 (Caucasian), who had been caught with an
unauthorized badge, named complainant as also having an unauthorized
badge. Complainant denied the accusation. On June 27, 1997, A-2,
the Medical Center Director, detailed C-1, C-2 (Hispanic), C-3
(Caucasian), C-4 (Asian) and C-5 (Black) to the Engineering Service
pending the conclusion of the investigation. Since he only had a
temporary appointment, H-1 was subsequently discharged. Six other
employees (five Caucasians, one Hispanic) were questioned, but B-1
found insufficient evidence of misconduct. The record indicates that
C-1 was subsequently terminated by the agency. C-4 and C-5 resigned
and C-2 retired. There was a proposal to suspend C-3 for thirty days;
however, the action was still pending at the time of the investigation,
because C-3 was on active military duty in Saudi Arabia.
On July 31, 1997, A-2, pending the outcome of the criminal investigation,
detailed complainant to the Engineering Service. The letter informing
complainant that he was being detailed indicated that "directors
are authorized to suspend the arrest authority of any police officer
whose judgement or professional competency is in doubt." Subsequently,
complainant was informed that the criminal investigation had concluded and
that no criminal charges would be filed. Since UPS only kept delivery
records for one year, management was unable to establish that the badge
was actually delivered to complainant.
With the exception of D-1, a Caucasian officer who admitted that he
created badges and was subsequently detailed to the Engineering Service,
complainant argued that, for the most part, Caucasian officers who were
implicated were not detailed out of the unit. He specifically mentioned
D-2 (Caucasian), D-3 (Caucasian) and D-4 (Caucasian). According to
complainant, "I know I was detailed, basically, because I am a black
guy."
On September 5, 1997, A-3, Acting Medical Center Director informed
complainant that the investigation had yielded no conclusive evidence
of misconduct on his part. Therefore, he was reinstated back into the
Police and Security Service as a police officer, effective September
8, 1997. A-1 subsequently notified complainant that, although there
was no conclusive evidence of misconduct, "locally procured badges,
shoulder patches and variations in basic uniform color and style are
not authorized."
A-1 testified that although complainant's actions did not warrant criminal
charges, there was misconduct. He acknowledged that there were officers
who were implicated, but not detailed. He, however, attributed this to
the fact that there was no "hard evidence" against them. A-1 denied
that complainant's race played any role in the decision to have him
detailed. In response to complainant's position that every officer who
was investigated should have been detailed to the Engineering Service,
A-1 testified that:
I believe we needed a level of at least probable cause to detail [an]
officer. I feel that everyone, [complainant] and above, had p.c [sic].
We may not have had enough evidence to take an action in the end, but
enough that it needed to be investigated further in consideration of the
situation. Everyone named and not detailed, while there was not probable
cause, there was suspicion, but suspicion was limited to the fact that
another former officer had ordered a badge using that officer's name
and badge number, but no indication that the badges were distributed.
ANALYSIS AND FINDINGS
The Commission has reviewed the record and finds that the FAD addressed
the facts and correctly applied the appropriate regulations, policies
and laws. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To that end, we find that A-1articulated a legitimate, nondiscriminatory
reason to explain why complainant was temporarily detailed to the
Engineering Service, while other employees may not have been. We also
find that complainant failed to establish pretext. He has not presented
any persuasive evidence which contradicts the testimony of A-1. Also,
other than his bare assertion that he was detailed because of his race
and color, complainant offered no persuasive evidence that these factors
played any role in this matter. We note in this regard that, during
the investigation, Caucasian, Hispanic, Asian and Black officers were
detailed to the Engineering Service.
CONCLUSION
Accordingly, we AFFIRM the agency's finding of no discrimination.
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:
05-31-00
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
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.
2According to the agency, it is unlawful to possess any badge other than
those that are issued to officers.