Bennie R. Richardson, Complainant,v.Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionMar 29, 2007
0120070164 (E.E.O.C. Mar. 29, 2007)

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

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0120070164