01976457
08-04-1999
Anthony Alfred, Appellant, v. Andrew Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Anthony Alfred, )
Appellant, )
) Appeal No. 01976457
v. ) Agency No. FW 92 41
) Hearing No. 270-95-9045X
Andrew Cuomo, )
Secretary, )
Department of Housing )
and Urban Development, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) 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. Appellant alleges
that he was harassed on the bases of race (Black), sex (male) and in
reprisal for prior EEO activity when his supervisor questioned him about
a complaint filed by the union and directed other employees to keep him
busy. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, a GS-4 Realty Clerk in the Property
Division Branch, Housing Management Division of the agency's facility
in New Orleans, Louisiana, filed a formal EEO complaint with the
agency on July 31, 1992, alleging that the agency had harassed him as
referenced above. At the conclusion of the investigation, appellant
requested a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). Upon the agency's motion and pursuant to 29
C.F.R. � 1614.109(e), the AJ issued a Recommended Decision (RD) without
a hearing, finding no discrimination.
Applying the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Harris v. Forklift Systems, 510 U.S. 17 (1993),
the AJ concluded that although appellant established that he is a
member of protected groups, he failed to establish a prima facie case
of race or sex discrimination because he did not present evidence that
the agency's conduct was severe, pervasive or egregious. In reaching
this conclusion, the AJ specifically noted that there was no evidence
that the agency's actions impeded appellant's work performance. The AJ
further found that appellant failed to establish a prima facie case of
retaliation because he did not present evidence that he was adversely
affected by the agency's actions. The agency's FAD adopted the AJ's RD.
Appellant did not submit a statement in support of his appeal. The agency
requests that we affirm its final decision.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ's finding that
appellant failed to present any credible evidence that the agency's
actions were in retaliation for appellant's prior EEO activity or were
motivated by discriminatory animus toward appellant's race or sex.
Accordingly, we discern no basis to disturb the AJ's finding of no
discrimination. Therefore, after a careful review of the record,
including arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
August 4, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations