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