01975634
05-12-2000
David W. Harding, Complainant, v. Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.
David W. Harding v. Department of Justice
01975634
May 12, 2000
David W. Harding, )
Complainant, )
) Appeal No. 01975634
v. ) Agency No. I-94-6473, I-95-6618, I-95-6706
) Hearing No. 210-96-6329X, 210-96-6330X
Janet Reno, ) 210-96-6331X
Attorney General, )
Department of Justice )
(Immigration and )
Naturalization Service), )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of sex (Male), and reprisal
(prior EEO activity) in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Deportation Officer at the agency's Chicago, Illinois facility.
Believing himself to be a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a series of formal complaints alleging
that he was discriminated against when: (1) his request to attend the
"Cuban Review Panel" was approved on June 13, 1994, the same day the
detail began;<2> (2) he was detailed to the ADIT (Information Officer)
Section on July 28, 1994, despite having been approved for leave during
the same time period;<3> (3) he was ordered to perform an "alien custody
detail" on December 30, 1994;<4> (4) he was subjected to a random drug
test on July 27, 1994;<5> (5) he received an annual 1994-1995 performance
rating of "Excellent" rather than "Outstanding" on April 26, 1995;<6>
and (6) he was included on a detail list to perform Detention Escort
duties on April 27, 1995.<7>
The agency accepted the complaints for investigation. At the conclusion
of the investigation, complainant received a copy of the investigative
reports and requested a hearing before an EEOC Administrative Judge
(AJ). Following a hearing, the AJ issued a recommended decision finding
no discrimination.
The agency's final decision implemented the AJ's recommended decision.
From the agency's final decision, complainant brings the instant appeal.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the AJ's
recommended decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present significant evidence that any of the agency's actions
were in retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's sex. For example, with
respect to the claim that complainant had been required to submit
to a drug test in retaliation for his prior EEO activity, the agency
introduced unrebutted evidence that complaint was tested only because
agency officials who had no knowledge of complainant's EEO activities had
randomly selected his name from a list of agency employees. The agency
showed complainant's other claims to be similarly without substance.
We discern no basis to disturb the AJ's recommended decision.
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we affirm the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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 (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:
May 12, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Complaint No. I-94-6473, filed July 11, 1994.
3Complaint No. I-94-6473, filed July 11, 1994.
4Complaint No. I-95-6618, filed January 18, 1995.
5Complaint No. I-95-6706, filed June 29, 1995.
6Complaint No. I-95-6706, filed June 29, 1995.
7Complaint No. I-95-6706, filed June 29, 1995.