Victor J. Renaghan, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionApr 20, 2007
0520070350 (E.E.O.C. Apr. 20, 2007)

0520070350

04-20-2007

Victor J. Renaghan, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Victor J. Renaghan,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Request No. 0520070350

Appeal No. 0120063834

Agency No. HS04CBP000682

Hearing No. 370-A5-0425X

DENIAL

Complainant timely requested reconsideration of the decision in Victor

J. Renaghan v. Department of Homeland Security, EEOC Appeal No. 0120063834

(February 2, 2007). 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).

Complainant alleged that he was discriminated against on the bases of

race (Caucasian) and age (D.O.B. 10/20/33) when he was suspended for ten

days and reassigned to a position as a Program Manager in San Francisco,

California. 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 timely requested a hearing. The AJ assigned to the case

considered the agency's motion for a decision without a hearing and over

the complainant's objections, issued his decision granting the agency's

motion on March 7, 2006.

In considering complainant's allegations of discrimination, the AJ found

the complaint concerned the agency's determination to suspend and remove

complainant from his position as Assistant Port Director following an

investigation into reports of his misconduct. More specifically, the

agency's investigation revealed that complainant had allegedly threatened

his supervisor with bodily harm and engaged in a pattern of violence and

inappropriate conduct. According to the AJ's conclusions, the evidence

revealed that complainant had confrontations with staff members and

agency officials in which he expressed extreme displeasure with his

immediate supervisor. The AJ found that the agency's investigation

into complainant's conduct was supported by the statements of several

witnesses and that complainant did not sufficiently controvert the

evidence against him such that a hearing was necessary. In addition, the

AJ found that complainant offered no evidence that others outside of his

protected class were treated more favorably or that the agency's actions

to issue disciplinary action were unfounded and instead, were motivated

by discrimination. For these reasons, the AJ found the agency did not

discriminate against complainant on the basis of his age or race when it

decided to discipline him for his actions. The agency subsequently issued

a final order adopting the AJ's decision finding no discrimination.

Pursuant to complainant's appeal, the Commission initially found that

the AJ's grant of summary judgment was correct. In addition, the

Commission found that complainant did not offer any evidence suggesting

that the agency was motivated by his age or his race in conducting an

investigation into his conduct. Significantly, the Commission found

that complainant failed to offer any evidence that another supervisor

had made physical threats of bodily harm against an agency official but

had not received any discipline. Thus, the Commission concurred with

the AJ's conclusion that there were no genuine disputes of material

fact which would have required an evidentiary hearing. In addition,

the Commission found that based on a de novo review of the record that

the agency did not discriminate against complainant and accordingly,

affirmed the agency's final decision.

In his request for reconsideration, complainant again contends that

there were genuine issues of material fact which needed to be resolved

at an evidentiary hearing. As he did before the Commission on appeal,

complainant claims that the witness testimony against him was faulty and

should not have been believed, and that the agency's investigative process

was flawed. Complainant further contends that the Commission and the AJ

failed to consider that he was subjected to a hostile work environment

because of his age, and that there was evidence that others were treated

more favorably. The agency did not respond to complainant's request.

However, after a consideration of complainant's arguments in his

request and the evidence of record, we concur with the finding in

our prior decision that complainant failed to proffer any evidence

demonstrating that he was discriminated against on the bases of race

or age when he was suspended and reassigned. After reconsidering 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. The decision

in EEOC Appeal No. 0120063834 remains the Commission's final 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 (Q0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or filed your appeal with the Commission.

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. 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

___4/20/07________________

Date

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0520070350

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0520070350