01a41138
06-17-2005
Richard L. McCreery, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, (Bureau of Census), Agency.
Richard L. McCreery v. Department of Commerce
01A41138
June 17, 2005
.
Richard L. McCreery,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
(Bureau of Census),
Agency.
Appeal No. 01A41138
Agency No. 01-63-00331
Hearing No. 140-2003-08047X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant was an applicant for employment at the agency's Raleigh
Regional Census Office, in Raleigh, North Carolina. On October 1,
2001, complainant filed a formal EEO complaint, claiming that he was the
victim of unlawful employment discrimination on the basis of disability
(depression) when:
he was not hired for temporary employment during the 2000 Decennial
Census.
The record reveals that approximately 6,000 individuals applied for
temporary positions at the Raleigh Regional Census Office; and that
on March 9, 2000, complainant applied for a temporary position. The
Decennial Applicant Name Check (DANC) staff checked all applicants,
including complainant, through the Federal Bureau of Investigation
(FBI)'s criminal history index.
The record further reveals that the FBI name check results produced
two categories of applicants: (1) "non-indents" for applicants with no
criminal history; and (2) "tentative-indents" for applicants who may
have a criminal history record. While the applicants designated as
�non-indents� were cleared for employment, the applicants designated as
�tentative indents� were subjected to further review.
On May 18, 2000, complainant contacted the agency concerning the status of
his temporary employment application and was informed by a representative
that his application was under review due to his criminal background.
The agency sent complainant a letter dated May 10, 2000, stating that he
was ineligible for employment. By letters to the agency dated May 19 and
24, 2000, complainant responded to the agency's letter of ineligibility.
Therein, complainant claimed that his previous arrests were based on
criminal complaints filed by his ex-wife; that these complaints were
either dismissed or considered misdemeanors; that his arrests were also
a result of depression suffered from September 1997 through April 1999;
and that the agency was in violation of the Americans with Disabilities
Act and requested accommodation.
On July 18, 2000, the agency sent a letter to complainant requesting
court documentation concerning his prior arrests. In response,
complainant provided copies of his court documentation and results
of his court ordered mental health assessment. On August 25, 2000,
the agency sent a letter to complainant stating that he was eligible
for temporary employment. However, there is no record indicating that
complainant received the eligibility letter. Moreover, the record reveals
that the agency did not hire complainant as a temporary employee because
the Raleigh Census Office closed in September 2000.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
In her decision, the AJ concluded that complainant failed to establish
a prima facie case of disability discrimination. Specifically, the AJ
found that complainant did not proffer sufficient evidence to show that
he was a qualified individual with a disability within the meaning of the
Rehabilitation Act, and that the agency did not regard him as having a
disability. The AJ found that while complainant had a mental impairment,
there was no record that complainant's depression substantially limited
any of his major life activities.
Further, the AJ concluded that even if complainant was able to prove he
was a qualified individual with a disability, the agency nevertheless
articulated a legitimate, nondiscriminatory reason for not hiring
complainant as a temporary employee prior to August 25 ,2000, namely,
he had not passed the criminal background check pursuant to the agency
application process.<1> Furthermore, the AJ found that complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination.
The AJ noted the Chief of the Decennial Applicant Name Check Staff
(Chief) stated that her division's responsibility was to process
all the temporary employees through a criminal check and suitability
determination. The Chief further stated that the purpose of a criminal
check was "to ensure the integrity of the data collection and to protect
public safety because the enumerator would be going into public homes
. . .." The Chief stated that after complainant applied for temporary
employment in March 2000, his application was subjected to further
review "as a result of our initial inquiry with the FBI that we received
this rap sheet." The Chief stated that her office was only aware of
complainant's rap sheet, not the contents included in his application
prior to issuing its May 10, 2000 ineligibility determination. The Chief
stated that in complainant's letter to the agency dated May 24, 2000,
complainant stated that his prior arrests were all based on his ex-wife's
complaints, and that "any guilt was a direct result of the depression
suffered and as a result of the breakup of his family." The Chief
stated complainant responded to the agency's July 18, 2000 letter by
submitting requested court documentation. The Chief stated that based
on the submitted information provided by complainant, it "clearly shows
that all of his charges were related to his family, at which point he
would not have been a threat to public safety." Furthermore, the Chief
stated that complainant was cleared by her staff on August 25, 2000,
based on the mitigating facts he provided concerning his prior arrests.
The AJ also noted in his testimony, the former Assistant Regional
Manager (Manager) stated that most hiring of temporary employees took
place from April 2000 to May 2000. The Manager further stated that
over 1,600 temporary positions were filled for various operations.
The Manager stated that on June 21, 2000, temporary employees in the
Raleigh Census office "stopped working." The Manager stated that while
there were no initial hires at the Raleigh office after July 13, 2000,
there were "rehires" of former temporary employees. Furthermore, the
Manager stated that the Raleigh office closed on September 30, 2000.
The agency's final order implemented the AJ's decision finding no
discrimination.
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.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission determines that the AJ's findings of fact are supported
by substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present evidence
that the agency's actions were motivated by discriminatory animus
toward complainant's disability. We discern no basis to disturb the
AJ's decision.
After a careful review of the record, we AFFIRM the agency's final order,
implementing the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 17, 2005
__________________
Date
1The Commission presumes for purposes of
analysis only and without so finding, that complainant is a qualified
individual with a disability.