Jude T. McKenna, Complainant,v.Alberto Gonzales, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMar 10, 2005
01a50256 (E.E.O.C. Mar. 10, 2005)

01a50256

03-10-2005

Jude T. McKenna, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.


Jude T. McKenna v. Department of Justice

01A50256

March 10, 2005

.

Jude T. McKenna,

Complainant,

v.

Alberto Gonzales,

Attorney General,

Department of Justice,

Agency.

Appeal No. 01A50256

Agency No. D-02-3665

Hearing No. 170-A3-8244X

DECISION

Complainant appeals to the Commission from the agency's September 10, 2004

decision finding no discrimination. Complainant alleges discrimination

on the bases of race (White) and in reprisal for prior EEO activity

which subjected him to a hostile work environment and included the

following incidents:

On December 18, 2001, complainant had his first telephone conversation

with his supervisor, Mr. X, and Mr. X advised him that there were going

to be big changes in the Demand Reduction (DR) program and instructed

him to prepare a memorandum detailing his work as DR Coordinator for

the past two years.

On January 7, 2002, Mr. X held a meeting with the Special Support Unit

(SSU) where he stated an interest in expanding areas of exposure for

the DR program.

On January 10, 2002, Mr. X told complainant to adopt an inner city school

because a friend of his was a teacher there and to �forget about� the

suburban schools.

On January 17, 2002, Mr. X told another supervisor of his dissatisfaction

with the actions and attitudes of the Black Special Agents (SA) under

the prior leadership.

Mr. Y criticized complainant's actions during the handcuff presentation.

Specifically, Mr. Y felt the Drug Enforcement Agency (DEA) might be

liable where there were male instructors handcuffing female participants

and White instructors handcuffing Black participants.

On February 19, 2002, complainant was questioned by Mr. X as to his

whereabouts on a day when complainant had taken approved leave.

On February 21, 2002, subsequent to the leave incident, Mr. X required

complainant to put in a leave request for 40 hours, which complainant

claims he did not use.

Mr. X accused complainant of misappropriating DEA funds because his son

attended the CPR class and financially benefitted from the training.

On March 6, 2002, complainant was not informed that a particular school

was to be adopted by the agency.

Following a hearing, an EEOC Administrative Judge (AJ) issued a decision

on July 29, 2004, finding that complainant had not been discriminated

against. Specifically, the AJ found that the complainant failed to prove

a prima facie case for hostile work environment based on race or reprisal.

The AJ also found that the agency presented legitimate, nondiscriminatory

reasons for its actions, which complainant failed to rebut. The agency,

on September 10, 2004, issued a decision adopting the AJ's decision.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ 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). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

The Commission agrees with the AJ that complainant has failed to show

by persuasive evidence that any of the alleged harassing incidents were

motivated by race discrimination or retaliation. The AJ's decision is

supported by substantial evidence in the record.

The agency's decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 10, 2005

__________________

Date