Hilton E. Moore, Appellant,v.Robert E. Rubin, Secretary, U.S. Department of Treasury, Agency.

Equal Employment Opportunity CommissionApr 28, 1999
01971297 (E.E.O.C. Apr. 28, 1999)

01971297

04-28-1999

Hilton E. Moore, Appellant, v. Robert E. Rubin, Secretary, U.S. Department of Treasury, Agency.


Hilton E. Moore, )

Appellant, )

) Appeal No. 01971297

v. ) Agency No. 95-2318

) EEOC Nos. 310-96-5249X

Robert E. Rubin, ) 310-96-5625X

Secretary, ) 310-96-5626X

U.S. Department of Treasury, ) 310-96-5627X

Agency. )

___________________________________)

DECISION

Appellant timely appealed the agency's final decision that it had not

discriminated against him in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission accepts

this appeal in accordance with EEOC Order No. 960.001.

Appellant filed a formal complaint of discrimination in which he claimed

discrimination on the bases of race (Caucasian) and reprisal (prior EEO

activity), when: (1) he was denied overtime pay for working overtime

on May 2, and 3, 1995; (2) he was forced to work overtime on May 9,

1995, and (3) he received threatening remarks from a coworker that were

condoned by management. The agency accepted the complaint and conducted

an investigation. At the conclusion of the investigation, appellant

requested a hearing before an Equal Employment Opportunity Commission

administrative judge (AJ). A hearing was conducted on September 24, 1996.

On September 25, 1996, the AJ issued a recommended decision (RD) finding

no discrimination. With respect to appellant's allegations regarding

overtime, the AJ concluded that appellant failed to establish a prima

facie case of discrimination on either bases in that he failed to

identify a similarly situated individual not in his protected classes

who had clocked out after their shift had ended on May 2 or 3, but

had received overtime. Furthermore, appellant was the only individual

drafted to work on May 9, 1995. With respect to appellant's complaint

regarding the threatening statements made by a fellow police officer

(Black), the AJ found that there was unrebutted testimony that appellant

had conflicts with other police officers as well.

Assuming appellant had established a prima facie case, the AJ found that

the agency had articulated legitimate, nondiscriminatory reasons for

its actions. Specifically, the agency provided evidence that employees

are paid overtime in 15 minute increments if they are still at the

facility in the ready room, canteen or smoking area. Furthermore,

they are supposed to ensure that a member of management knows that

they are waiting out the reminder of the overtime period. However,

the AJ found that on the days in question, appellant �bagged out� at

19:02 and 19:01 respectively. Thus, he was not paid for any overtime.

With respect to appellant's allegation regarding being forced to work on

May 9, 1995, testimony revealed that twelve people, as opposed to eight

as appellant claimed, were required for that day's work. With respect

to appellant's contention regarding threatening statements from a fellow

employee which were condoned by management, the AJ found that appellant

and the fellow employee were counseled, and both assured management that

they could work togther.

The AJ also found that appellant had failed to provide evidence which

would place the agency's articulated reasons in dispute. Furthermore,

he found that appellant failed to prove his ultimate burden, that the

agency's actions were based upon a discriminatory animus. Specifically,

the AJ found that the decision maker on the overtime issue followed proper

procedures, and there was no evidence that the incidents involved were

motivated by appellant's race or prior EEO activity. In sum, the AJ

found that appellant was not discriminated against, as alleged.

On October 31, 1996, the agency issued a final decision adopting the AJ's

finding of no discrimination. It is from this decision that appellant

now appeals.

After a careful review of the record in its entirety, the Commission

finds that the AJ's recommended decision sets forth the relevant facts

and properly analyzes the appropriate regulations, policies and laws.

The Commission has reviewed the parties' statements on appeal and discerns

no basis in which to disturb the AJ's finding of no discrimination.

Specifically, appellant argues that the AJ failed to rule on his Motion

to Remand the Complaint for a Supplemental Investigation which was made

orally during the hearing. Appellant supplied a written Motion to Remand

as part of his appeal, and therein argued that the agency had failed to

conduct a detailed investigation which would have allowed appellant to

have established a prima facie case. We find that the AJ's denial of

appellant's Motion to Remand is contained in the Recommended Decision

and we disagree with appellant's argument on appeal that the AJ erred in

his decision. Specifically, we find that prior to the hearing, appellant

failed to raise an objection to the substance of the investigative file.

Indeed, in a letter from appellant's attorney to the AJ dated May 28,

1996, appellant's attorney acknowledged that, �based upon our review

of the Investigative File, we do not anticipate the need for further

discovery prior to the hearing.� Finally, the agency moved ahead with

legitimate, nondiscriminatory reasons for its actions assuming appellant

had established a prima facie case. Accordingly, it is the decision

of the Equal Employment Opportunity Commission to AFFIRM the agency's

finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

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

case if 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:

April 28, 1999

___________________ ____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations