Lawrence Bannister, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionFeb 4, 2009
0120081581 (E.E.O.C. Feb. 4, 2009)

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).

??

??

??

??

2

0120081581

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013