0520120292
05-31-2012
Stephen G. House, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Stephen G. House,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Request No. 0520120292
Appeal No. 0120100818
Agency No. HS07ICE002298
DENIAL
Complainant timely requested reconsideration of the decision in Stephen G. House v. Department of Homeland Security, EEOC Appeal No. 0120100818 (January 4, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In the appellate decision, Complainant alleged that he was discriminated against on the bases of race (Caucasian), sex (male), age (49, and in reprisal for prior protected EEO activity when: (1) effective August 2, 2007, the Agency suspended his privilege to drive his government vehicle from home to work; (2) on August 27, 2007, he learned that the Agency was requiring him to work an eight and a half hour duty day; (3) during the week of September 10, 2007, an Office of Professional Responsibilit6y investigation was inappropriately commenced against him rather than being administratively handled by management; (4) on October 5, 2007, the Agency issued him an incomplete performance appraisal for the rating period of October 1, 2006, through September 30, 2007; and (5) on October 22, 2007, he was harshly ordered to provide medical documentation and, for the first time, was provided with a September 2007 email from the Agency physician listing what information was needed. The Agency dismissed claims (3) and (5) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The EEOC Administrative Judge (AJ) noted that claims (3) and (5) had been dismissed and that Complainant did not disputed the dismissal; therefore, a decision on the merits of the remaining claims was issued without a hearing. The AJ found that assuming arguendo that Complainant had established a prima facie case under the alleged bases, the Agency had articulated legitimate, nondiscriminatory reasons for its actions, with regard to claim (1) Complainant's home to work government vehicle privileges were suspended based on his disregard of management's directive to stop making unauthorized traffic stops off of federal property. As for claim (2), the AJ noted that law enforcement officers who were not performing law enforcement duties had to work an eight and a half hour day allowing for the extra half hour for lunch. It was noted that officers that worked in the field were allowed to work an eight hour day due to their frequent inability to take a half hour lunch break. Finally, regarding claim (4) the AJ noted that management decided not to rate Complainant on the element of Interpersonal Skills because an investigation regarding complaints from SSA was pending. Complainant was rated Successful on the other two elements of his appraisal and therefore received a "Successful" overall. The AJ found that Complainant failed to prove his case as he failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. The Agency fully implemented the AJ's finding of no discrimination. The Commission affirmed the finding of no discrimination.
REQUEST FOR RECONSIDERATION
In Complainant's request for reconsideration, Complainant provides evidence which he claims was not available at the time of his appeal. This evidence concerns a hearing held in the United States District Court for the Northern District of Georgia, Rome Division in the case of United States of America v. Stephen G. House, Docket No. $:10CR1 (July 28, 2010). The evidence focuses on the testimony from the Federal Protective Service Management regarding the situations where officers are allowed to make traffic stops. Complainant argues that the use of his vehicle was taken away based on the Agency's faulty interpretation of its policy.1 Complainant maintains that management perjured itself when, in District Court, the Area Commander admitted on July 28, 2010, that she never told FPS officers that they could not make traffic stops. Further the Regional Director testified that he would not have a problem with an FSP officer making a traffic stop under dangerous conditions, with the officer using their own discretion. Complainant also provided a power-point training slide created on September 18, 2010, which clarifies when and how an FSP officer should make traffic stops. The example given in the slide presentation describes an "emergency situation" where an officer may make a stop if she/he sees a car weaving on and off the roadway. The slide also gives the officer direction for when deadly force is needed with regard to these situations. Based on this evidence Complainant argues that the AJ erred when she found that the FSP policy was clear and that the Area Commander's interpretation of the policy was a reasonable one.
Complainant also argues that a conflict exist between the testimony garnered at trial and the EEOC testimony generated during the investigation. He maintains the Area Commander took away his vehicle home privileges as a form of reprisal. He argues that the policies regarding traffic stops were interpreted in a confusing manner and that the EEOC AJ failed to interpret the policy on her own. Complainant maintains that out of the six officers who made traffic stops, he was the only one whose privileges were taken away. He also notes that the Area Commander is currently the subject of an investigation for actions she took against him, e.g., cursing, screaming, and kicking a chair airborne in the Complainant's office. Based on the evidence provided, Complainant requests that the decision be reconsidered.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. At the outset, we note that the Commission eliminated the provision for submitting new and material evidence as a basis for granting reconsideration with the implementation of new regulations on November 9, 1999. See 29 C.F.R. � 1614.405 (b) et seq; Murphy v. Department of Veterans Affairs, EEOC Request No. 05A10724 (August 8, 2001).
We also find that Complainant has failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. While the evidence certainly reveals that the traffic stop policy is ambiguous and that the term "emergency situation" is open to interpretation, the evidence does not dispute that Complainant made two traffic stops after he had been told not to make any stops. And while, Complainant maintains that the Area Commander did not tell everyone that they could not make traffic stops, it is clear that she told him not to make any stops and yet he made the two stops in question. Moreover, although Complainant maintains that six other officers made traffic stops and yet were not disciplined, he failed, however, to show that they were similarly situated to him, i.e., that they were under investigation like him. Further, Complainant failed to present any evidence which suggests that the stops that he made were as a result of some emergency situation. We find that other than Complainant's conclusory claims he has not shown that discriminatory animus was involved with regard to his vehicle privileges being taken away. Accordingly, the decision in EEOC Appeal No. 0120100818 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
____5/31/12______________
Date
1 Complainant does not address claims (2) and (4) in his request for reconsideration; therefore, we will not address these claims in this decision.
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05-2012-0292
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520120292