0120081581
02-04-2009
Lawrence Bannister, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Lawrence Bannister,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120081581
Agency No. 06-00004
Hearing No. 450-2007-00234X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
At the time of the events at issue, complainant was employed by the
agency as a CORE (Cadre of On-call Response and Recovery) appointee1 and
had been since 1997. In 2000, he was assigned to an agency facility in
Denton, Texas, where he served as a Safety Manager. His supervisors
were located in the agency's headquarters in Washington, D.C. In his
complaint dated December 30, 2005, complainant alleged that the agency
discriminated against him on the bases of race (African-American), sex
(male), and reprisal for prior protected EEO activity. Complainant timely
requested a hearing before an EEOC Administrative Judge (AJ). The record
reflects that the accepted claims, as defined by the AJ, were as follows:
1. Complainant received a Certified Memorandum and Certificate of
Determination from the Safety and Security branch Chief notifying him
that his position would be transferred from Denton, Texas, to Washington,
D.C., effective January 8, 2006;
2. On May 11, 2005, complainant was accused of violating the agency's
smoking policy, while other individuals, including white males, smoking
in the same area were not charged;
3. On April 12, 2005, complainant was denied the opportunity to
participate in a fire inspection by the Denton Fire Department, and was
not provided a copy of the inspection report, even though his position
requires his participation; and
4. On February 3, 2005, a copy of the internal branch level investigation
of his allegations was released and found no inappropriate conduct in
the issues he alleged. Subsequent evidence corroborated his claim of
a co-worker's demeaning and unprofessional behavior was not placed in
the report.
Following the hearing held on November 7 and December 6, 2007, the AJ
issued a decision finding no discrimination. The AJ concluded that
complainant had not met his burden of proving that the agency's reasons
for its actions were a pretext to discriminate against him. The agency
did not issue a final order.2
Pursuant to 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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Having reviewed the record, we find that the evidence substantially
supports the AJ's decision. Even if we assume that complainant
established a prima facie case of race, sex and reprisal discrimination,
we agree with the AJ that the agency provided legally sufficient
legitimate reasons for its actions and that complainant failed to prove
that these reasons were pretext. Specifically, the AJ noted that with
regard to the transfer, agency management testified that a decision
was made in spring 2005 to relocate all safety and security officers to
Washington, D.C. and have collateral duty safety officers in the field.
Complainant and another person affected by this decision were notified in
October 2005. Complainant was not provided relocation expenses according
to the agency because such expenses are not offered to CORE employees.
To the extent complainant was asserting a claim of harassment, we find
that the record supports the AJ's conclusion that complainant failed to
provide proof that the agency actions were based on his race, sex and/or
prior protected activity.
It is the decision of the Equal Employment Opportunity Commission
to AFFIRM the agency's final order because the Administrative Judge's
ultimate finding, that unlawful employment discrimination was not proven
by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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, Director
Office of Federal Operations
February 4, 2009
__________________
Date
1 The record indicates that CORE appointees are non-career employees
who have a specific term of employment (usually 2-4 years) that has to
be renewed at the end of each contractual period.
2 EEOC regulations provide that, where an agency does not issue a final
order within 40 days of receipt of the AJ's decision, the AJ's decision
becomes the final action of the agency. 29 C.F.R. � 1614.109(i).
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0120081581
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013