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