052011072
01-04-2012
Alvah Fortham, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Alvah Fortham,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520110721
Appeal No. 0120093091
Agency No. HS06CBP000325
DENIAL
Complainant timely requested reconsideration of the decision in Alvah
Fortham v. Department of Homeland Security, EEOC Appeal No. 0120093091
(August 25, 2011). 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).
BACKGROUND
In the appellate decision Complainant alleged that he was discriminated
against on the bases of race (African American), age (51), and in reprisal
for prior protected EEO activity when he was terminated from his position
on December 17, 2005, during his probationary period. Complainant was
terminated from his position for using “poor judgment” with respect
to the importation of his vehicles,1 the improper display of a foreign
license tag, and inappropriate use of the DHS insignia. The Agency issued
a final decision which found that Complainant failed to prove the Agency
subjected him to discrimination as was alleged. The Commission affirmed
the Agency’s finding. The Commission found that Complainant had not
shown by a preponderance of the evidence that the Agency’s reasons
for his termination were pretext for discrimination. While Complainant
questioned the logic or fairness of the termination decision, the
previous decision found that he provided nothing but bare speculation
that discriminatory factors played a role in the decision-making.
Additionally, the previous decision found that with respect to his
allegations that there were procedural irregularities in the processing
of his termination, the Commission found that this, without more, did
not establish that discrimination occurred. The previous decision also
noted that it was ICE and the Miami Dade police who first complained
about the license issue, not the component for which Complainant worked.
REQUEST FOR RECONSIDERATION
In his request for reconsideration, Complainant maintains that he violated
no published or implied Agency law or policy. He also maintains that
no laws that cover the use of government symbols or the United States
flag were violated. Moreover, he maintains that placing the DHS symbol
on his vehicle was meant to show support to the Agency. He explains
that the placement of other Agency symbols, such as the Florida Highway
Patrol, and the Florida Sheriff Department is often used on personal
vehicles to show support for those Agencies. Complainant contends that
the Agency’s claim that he showed a “lack of good judgment” is
unfounded and clearly pretext for discrimination. Complainant indicates
that this was demonstrated by the Agency’s changing the reason for
his termination from “lack of good judgment” to “misconduct” in
order to block unemployment benefits being paid to him.
Complainant reiterates his contention that it was his questioning of
coworkers regarding the disproportionate ratio of officers to supervisors
in terms of race and about the forced resignation of another African
American officer that caused his termination. He asserts that the fact
that he was dismissed during this time can hardly be seen as coincidental
and is the true reason for his dismissal. He also maintains that when
he expressed his concerns to his supervisor, i.e., that the actions
taken against him were racially motivated and retaliatory, the supervisor
recommended that he not bring up the subject again. Complainant maintains
that by doing so the supervisor failed to follow Agency policy in handling
such employee claims. Thus, he contends that he was denied his rights.2
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. We find that Complainant 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. With regard to Complainant’s contentions, we find that other
than Complainant’s conclusory statements regarding his belief that
discriminatory factors were involved, he has not provided any evidence
to support these assertions. Finally, we find no persuasive evidence nor
did Complainant allege that he was denied the opportunity or discouraged
from pursuing EEO activity. We agree with the appellate decision that
Complainant has simply not proven that the Agency’s explanation for
its termination decision was pretext for discrimination. Accordingly,
the decision in EEOC Appeal No. 0120093091 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
____1/4/12______________
Date
1 Complainant previously worked in Japan. As a result he had his
household goods shipped to the United States, including two vehicles.
The two vehicles needed to be brought into compliance with standards
set by the Department of Transportation and the Environmental Protection
Agency. Upon his return from training, the vehicles were provisionally
released to him on condition that the necessary modifications had to
be made to the vehicles. Complainant left the two vehicles in a Port
parking lot until they were eventually seized by Immigration and Customs
Enforcement (ICE) on the grounds that they had been improperly imported.
It was also reported by ICE and the Miami Dade Police Department that
the car that Complainant was driving had not been properly licensed.
Complainant had put an Agency decal on the back of his vehicle near the
license plate area, along with a replica of a foreign license plate
in the license plate area. The Florida license plate was apparently
displayed through the window.
2 The record shows that Complainant is alleging that the Agency failed
to follow the requirements expressed in OPM regulation 5 C.F.R. 315.805.
Complainant did not allege that his supervisor discouraged him from
filing an EEO complaint.
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0520110721
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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