0120065307
05-20-2008
Delanamore F. Love, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Delanamore F. Love,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200653071
Agency No. 4R0M05002
Hearing No. 450a60069x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 18, 2006 final order concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
At the time of the events at issue, complainant was employed as an
Aircraft Electrician, WG-10 in the 301st Aircraft Maintenance Squadron
at an agency facility in Fort Worth, Texas. Complainant filed an EEO
complaint on January 27, 2005, alleging that the agency discriminated
against him on the bases of race (African-American) and reprisal for
prior protected EEO activity2 when he was issued a proposal to remove,
which was later changed to a 10-day suspension. On April 25, 2005,
complainant filed another complaint of race and retaliation when he was
suspended for one day for being absent without leave (AWOL) on the day
after he served his 10-day suspension. Finally, on June 20, 2005, he
filed a third EEO complaint alleging race and retaliation discrimination
when his appraisal was lowered because of the suspensions. Following an
investigation into the three complaints, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ consolidated the three
complaints for a hearing, which was held on June 13, 2006.
Briefly, the evidence of record indicates that in May 2004, complainant
was tasked by his supervisor with performing scheduled maintenance on
two aircraft. The supervisor believed that complainant falsely certified
that he had performed the assigned maintenance work as required when he
had not. As a result, in August 2004, he was issued a proposed removal,
which was later mitigated to a 10-day suspension after consideration
of complainant's response. Complainant served the 10-day suspension
from November 9-18, 2004. It is undisputed that he failed to report
back to work on November 19, 2004, and did not call in or request leave.
Therefore, he was charged with one day of AWOL and issued an additional
one-day suspension. Complainant asserted that he misread the papers
regarding the 10-day suspension and, although he was supposed to return to
work on a Friday, he did not do so until the following Monday. On May 5,
2005, complainant received his annual performance appraisal with ratings
lower than those he received the previous year as a result of the two
suspensions.
In any event, after complainant filed his three EEO complaints, a report
was sent to the Commander by the EEO counselor, and complainant's
fifth-level supervisor was asked to review the matter. Upon review,
that fifth-level supervisor determined that the delay (about ten weeks)
in issuing the proposed removal (later reduced to the 10-day suspension)
may have impacted on complainant's ability to recall events in response to
the proposed action. Additionally, he determined that the investigation
that resulted from complainant's response to the proposed removal was not
as complete as he would have liked. Moreover, the fifth-level supervisor
determined that the subsequent one-day suspension and the lowered
performance appraisal were the direct result of the 10-day suspension.
Therefore, he recommended that the disciplinary actions be cancelled
and expunged for complainant's records, and the appraisal be revised
to the same level it was the previous year. This recommendation was
implemented by the agency in late May 2005.
Despite these actions, complainant's EEO complaints continued to
be processed, and the hearing was held in June 2006. Following the
hearing, the AJ issued a decision finding of no discrimination or
reprisal had occurred, which was then adopted by the agency. The AJ found
that complainant failed to present comparative evidence showing he was
treated differently than other similarly situated employees, or provide
any other evidence probative of his claims of disparate treatment.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the AJ's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z0408)
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
May 20, 2008
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal and request numbers.
2 The record shows that in July 2002 complainant had previously alleged
he had been subjected to race discrimination when he was suspended for
three days.
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0120065307
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065307