0120110340
01-11-2011
Kevin D. Felder, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Kevin D. Felder,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120110340
Hearing No. 450-2009-00364X
Agency No. 09-63-00057D
DECISION
Complainant filed an appeal from an Agency's final action dated August 27,
2010, finding no discrimination with regard to his complaint. 29 C.F.R. �
1614.405(a). For the following reasons, we AFFIRM the Agency's decision.
BACKGROUND
In his complaint, dated January 15, 2009, Complainant alleged
discrimination based on race (African American) and in reprisal for prior
EEO activity when he was subjected to a hostile work environment in that:
(1) He was subjected to disparaging remarks when: on October 14, 2008,
his second level supervisor (S2) called him "boy;" on October 22, 2008,
he was verbally reprimanded for a violation concerning his handling of
personally identifiable information; on November 18, 2008, S2 called
him the "weakest link;" and S2 constantly told him, "I did not hire you,
I don't know anything about you;"
(2) He was denied a representative during a disciplinary meeting in
November 2008;
(3) The Agency discouraged him from filing an EEO complaint;
(4) He was required to work without breaks and without lunch and was
not compensated for the time worked;
(5) He was not allowed to develop recruitment plan, which was part of
his job responsibilities; and,
(6) He was terminated from his term position on December 4, 2008.
The record indicates that at the conclusion of the investigation,
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
On March 1, 2010, the AJ, after a hearing, issued a decision finding no
discrimination, which was implemented by the Agency in its final action.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, the AJ determined that, assuming arguendo that Complainant
had established a prima facie case of discrimination, the Agency
articulated legitimate, nondiscriminatory reasons for the alleged actions.
The AJ noted that on October 14, 2008, Complainant was appointed to an
excepted service, temporary position as an Assistant for Recruiting with
the Dallas Early Local Census Office not-to-exceed September 10, 2009.
With regard to claim (1), S2 denied making these remarks. S2 indicated
that he might have on one occasion said to a group, "let's go boys and
girls" or something to that effect when addressing management staff.
On appeal, Complainant does not dispute this and acknowledge that S2 did
refer "to grown me and women as boys and girls." Report of Investigation
(ROI), Exhibit (Ex.) 9. The Agency also indicated that Complainant was
reprimanded because during his October 22, 2008 testing session, three
applicant folders were missing and he engaged in verbal altercation with
an applicant who walked out of the testing session thereafter.
With regard to claim (2), both Complainant's first level supervisor
(S1) and S2 denied they ever denied Complainant the right to have a
personal representative present during November 18, 2008 performance
counseling session or any other time. ROI, Ex. 8, Ex. 9. S2 indicated
that Complainant never asked for the representative during the session.
With regard to claim (3), an identified Agency official denied she ever
discouraged Complainant from filing an EEO complaint.
With regard to claim (4), S1 and S2 indicated that Complainant did not
properly request compensatory time or overtime hours in advance which
was strictly required under the Agency policy. Specifically, S1 stated
that there were times when Complainant worked overtime which was supposed
to be requested in advance but he failed to do so. S1 also stated that
on two occasions, Complainant performed recruiting at a church on Sunday
afternoons and Complainant understood before hand the recruiting sessions
were not supposed to last more than 2 hours but lasted 5 to 6 hours.
Complainant was paid for the 2 pre-approved hours.
With regard to claim (5), S1 stated that Complainant failed to produce a
6-week test schedule as he was instructed to do so. S1 indicated that
despite the several weeks Complainant had to develop his first plan,
the one he submitted was not specific, thorough, or complete and showed
no effort on the part of Complainant.
With regard to claim (6), S1 stated that Complainant was terminated
due to his unsatisfactory work performance. Specifically, S1 indicated
that Complainant was not available during his normal duty hours; he made
inappropriate physical contact with female applicants; he was not able
to carry out his recruiting sessions in a proper manner; and he failed
to prepare and maintain the testing schedule for 6 weeks in advance,
as discussed in claim (5).
The AJ stated that Complainant failed to show by a preponderance
of the evidence that the Agency's proffered reasons were pretextual.
Upon review, we find that the AJ's factual findings of no discriminatory
intent are supported by substantial evidence in the record.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the Agency's final action is
AFFIRMED because the AJ's decision is supported by substantial evidence.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (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
1/11/11
__________________
Date
2
0120110340
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013