0120070164
03-29-2007
Bennie R. Richardson, Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.
Bennie R. Richardson,
Complainant,
v.
Alphonso Jackson,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120070164
Hearing No. 270-2005-00109X
Agency No. FW-0424
DECISION
On October 10, 2006, complainant filed an appeal from the agency's
September 15, 2006 final order 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 appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant worked as
a Community Planning and Development Representative at an agency facility
in New Orleans, Louisiana. On September 14, 2004, complainant filed a
formal EEO complaint alleging that the agency discriminated against him
on the basis of sex (male) when, on June 8, 2004 and August 3, 2004,
it denied his requests for a hardship transfer to Atlanta, Georgia
and Jacksonville, Florida, respectively. Complainant stated that he
requested a transfer in March 2004 and alleged that the agency approved
the requests of female coworkers under the assumption that they need
transfers for family reasons and men do not.
A Division Director (S1) stated that he made the decision to support or
not support an employee's transfer request and the agency headquarters
provided the transfer authorization. He stated that he supported
complainant's request because he provided medical documentation indicating
that his mother was ill. S1 explained that complainant's mother resided
in Little Rock, Arkansas and complainant requested a transfer to be
closer to her and his two nephews for whom she provided care, but he
did not want to accept the agency's offer of a transfer to Little Rock.
S1 stated that a position was not available for complainant in Atlanta
or Jacksonville. An Office Director (S2) stated that hardship transfer
requests for Atlanta for two females were approved before complainant made
his request so the Atlanta office was sufficiently staffed and that the
Jacksonville office was sufficiently staffed. S2 stated further that,
on August 20, 2004, complainant accepted the agency's transfer offer to
Little Rock, Arkansas but, three days later, stated that he would await
the agency's decision regarding a transfer to Jacksonville. S2 added that
complainant asked for Little Rock again after the time period for him to
make a decision on that location expired. A Deputy Assistant Secretary
reiterated S1 and S2's contentions, and added that complainant contacted
his congressional representative regarding the matter. Summarily, the
agency stated that it attempted to assist complainant with his request,
to no avail.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing. On September 6, 2006, the AJ assigned to the case issued a
decision without a hearing and found no discrimination. The AJ reasoned
that complainant failed to establish pretext because the evidence revealed
that the agency attempted to accommodate complainant's request but the
two parties could not reach an agreement so there was no inference of
discrimination. Subsequently, on September 15, 2006, the agency issued
a final order adopting the AJ's finding that complainant failed to prove
that he was subjected to discrimination as alleged. The instant appeal
followed. On appeal, complainant stated that genuine issues of material
fact exist, primarily regarding the employees to whom the agency granted
hardship requests in the past.
First, we must determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. �
1614.109(g). This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgment, a court's function is not
to weigh the evidence but rather to determine whether there are genuine
issues for trial. Id. at 249. The evidence of the non-moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. at 255. An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. In the instant matter, we find that
the AJ's issuance of a summary judgment decision was appropriate.
Regarding the merits of complainant's case, in the absence of direct
evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII case alleging discrimination is a
three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-803 (1973). First, complainant must 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
In the instant matter, the prima facie inquiry may be dispensed with
because the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Id. Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant failed to establish that the legitimate, nondiscriminatory
reasons articulated by the agency for its actions, i.e., sufficient
staffing at the locations complainant requested and disinterest
by complainant in the locations that were available, were pretext.
Accordingly, we AFFIRM the agency'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
March 29, 2007
__________________
Date
2
0120070164
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070164