0120090628
03-12-2009
Paul J. Bishop, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Paul J. Bishop,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120090628
Agency Nos. HS07CBP001779040119 and HS07CBP002243040129
Hearing No. 530200800098X
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.
The record indicates that an EEOC Administrative Judge (AJ) issued a
decision on October 10, 2008. When the agency failed to issue a final
agency decision, the AJ's decision became the final decision.
Complainant, an Agriculture Specialist, alleged that the agency
discriminated against him on the bases of race (African-American) and
sex (male) when he was not given access to the Cargo Management System
(CMS), he was denied CMS training, he was denied the use of a government
owned vehicle, and he was not assigned a specific desk to perform his
job. Complainant filed a second EEO complaint when he was terminated
from his position during his probationary period.
In his decision, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for the actions at issue. In brief, the
AJ concluded that the evidence of record showed that complainant had
access to CMS and computers, that there was no special training for
CMS and complainant regularly used the system, and that new employees,
like complainant, did not receive their own workstations. With respect
to the government car, the AJ noted that complainant received a ride
in a government car. Further, the place to which complainant wanted
to go was a direct report place, meaning employees reported there
directly from home and were expected to use their own vehicles. Finally
with respect to the termination, the AJ found that agency management
asserted that complainant produced illegible hand written spreadsheets,
he refused/avoided safeguarding containers, he repeatedly failed to
place inbound seal numbers in CMS, he wore inappropriate attire, he was
unwilling to help co-workers, he failed to attend "Outlook" training,
he was a divisive influence in the work place, and he seemed unable to
understand the supervisory right to assign work. The AJ then concluded
that complainant failed to prove, by a preponderance of the evidence,
that the agency's proffered reasons for its action were actually a
pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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
March 12, 2009
__________________
Date
2
0120090628
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120090628