William E. Davis, Appellant,v.Alexis M. Herman, Secretary, Department of Labor, Agency

Equal Employment Opportunity CommissionJan 15, 1999
01972443 (E.E.O.C. Jan. 15, 1999)

01972443

01-15-1999

William E. Davis, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency


William E. Davis v. Department of Labor

01972443

January 15, 1999

William E. Davis, ) Appeal No. 01972443

Appellant, ) Agency No. 3-11-072

v. ) Hearing No. 100-95-7321X

Alexis M. Herman, )

Secretary, )

Department of Labor, )

Agency )

DECISION

Appellant timely appealed to this Commission from a final agency decision

("FAD") concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq.; the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. Section 621 et seq.; and Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. The appeal

is accepted pursuant to the provisions of EEOC Order No. 960, as amended.

The issues presented are whether appellant was subjected to discrimination

on the bases of his sex, race (African American), color (black), age

(48), disability (10-point veteran preference), or reprisal when he

(a) was denied training and/or travel concerning the Columbus case;

(b) allegedly was subjected to unfair implementation of the flextime

policy; (c) did not receive a cash award for his training expertise;

(d) was not selected for an unadvertised position in his office; (e)

was "written up" for abusing his lunch hour; and (f) was escorted from

the building by security on July 10, 1992.

Appellant timely sought counseling and filed his instant formal EEO

complaint, which was accepted and processed by the agency. Appellant

requested a hearing before an EEOC Administrative Judge ("AJ"), and on

October 24, 1996, the AJ issued a recommended decision ("RD") without

a hearing finding no discrimination. See 29 C.F.R. �1614.109(e)(3).

In its FAD, the agency adopted the RD. Appellant timely appeals,

stating that he is "requesting a hearing because I have not been given

due process under the law."

Insofar as appellant alleged discrimination on the basis of a disability,

the AJ found that he failed to produce any evidence that his 10-point

veterans' preference rose to the level of a disability as defined by

the Commission's Regulations. As for allegation (a), the AJ noted that

between June 1991 and June 1992, appellant had traveled to attend two

reviews in Denver and Greensburg. The AJ found that appellant presented

no evidence that he was entitled also to travel to attend the Columbus

review. While appellant alleged that he had been denied training, the

AJ found that he had been approved for LOTUS 1-2-3 training and failed

to produce any evidence that anyone outside of his protected classes

had received this training while he had not.

Appellant made a number of allegations concerning implementation of the

flextime policy (allegation (b)), including that: he was not allowed to

arrive early, other employees came and went as they pleased, coworkers

monitored his comings and goings; the time-log was kept at the desk of

supervisors and coworkers as a way to monitor his whereabouts; that his

flextime sheet was altered; and that permission to use credit hours

was granted, but then withdrawn, placing him on Absent Without Leave

status on July 2, 1992. In addition, on March 13, 1992, a supervisor

issued appellant a memorandum regarding abuse of flextime. However,

the AJ found that appellant failed to offer evidence that he was treated

differently than other employees in his unit or that a person outside

his protected classes engaging in the same conduct was not disciplined.

Wile appellant complained that he was never given a cash award for his

training expertise (allegation (c)), the AJ found no evidence that any

other similarly situated employee received a cash award for the monthly

training session or for giving any other training. With respect to

allegation (d), another employee had asked for and received a reassignment

to the Lanham office. While appellant contended that he, too, had tried

to get reassigned to another office, the AJ found that the other employee

actually applied for a transfer and that appellant did not present any

evidence that he had applied for any transfer.

As for allegation (e), the AJ found that appellant was issued a memorandum

which merely reminded him of his proper lunch time and expressed the

hope that "in the future" appellant would adhere to the proper time.

The AJ found that this memorandum did not constitute an adverse action

and that appellant was not aggrieved by its receipt. Accordingly, the

AJ found that allegation (d) was subject to dismissal pursuant to the

provisions of 29 C.F.R. �1614.107(a).

The record reflects that appellant was ordered and escorted out of the

building (allegation (f)) on the basis that he had been insubordinate to

his first level supervisor and had threatened his second level supervisor.

(Appellant was removed for this conduct, but the removal was reduced to

a 30-day suspension by an Arbitrator). The AJ found no evidence that

any person outside of appellant's protected classes was treated more

favorably than he under similar circumstances.

As noted above, on appeal, appellant requests that this matter

be remanded for a hearing. However, appellant does not dispute or

otherwise controvert the evidence of record that: he had traveled to two

accountability reviews from June 1991 to June 1992; he received permission

for LOTUS 1-2-3 training; other employees in his unit were not treated

more favorably than he in the implementation of the flextime policy;

other employees did not received cash awards for training; he had not

submitted a transfer request; he was not aggrieved by the memorandum

regarding his proper lunch hour; or others were not escorted from the

building under a similar situation.

Accordingly, after a careful review of the record, the Commission finds

that the RD adequately set forth the relevant facts and analyzed the

appropriate regulations, policies and laws. The Commission discerns no

basis to disturb the AJ's finding of no discrimination. Therefore, the

Commission AFFIRMS the FAD and finds that appellant fails to prove, by a

preponderance of the evidence, that he was subjected to the discrimination

alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Jan 15, 1999

________________ ___________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations