01a50716
04-11-2005
Mark A. Trabue, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Mark A. Trabue v. Department of Justice
01A50716
4/11/05
.
Mark A. Trabue,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A50716
Agency No. P-99-0284
Hearing No. 320-A1-8272X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter. The
record reveals that complainant was at the relevant time a Correctional
Officer at the United States Penitentiary, Administrative Maximum (ADX)
in Florence, Colorado. Complainant alleged that the agency discriminated
against him on the bases of race (African-American) and reprisal for
prior EEO activity when:
(1) complainant was subjected to a hostile work environment because of
his race by a coworker, which the agency refused to defuse; and
complainant was reassigned for two months to the Federal Correctional
Institution in Florence, Colorado (FCI) by the warden in retaliation
for EEO activity.
The Commission has reviewed the record in its entirety, including all
statements submitted on appeal. We affirm the agency's final order
because the Administrative Judge's (AJ) decision without a hearing,
finding no discrimination, was appropriate.
The Commission's regulations allow an EEOC AJ to issue a decision
without a hearing when he or she finds that there is no genuine
dispute as to whether the agency discriminated against complainant.
29 C.F.R. � 1614.109(g). In order for an agency's action(s) to have
been discriminatory, the agency must have the intention to discriminate
because of complainant's race, color, religion, sex, national origin,
age, or disability.
In this case, the AJ was correct in finding no discrimination without
a hearing. Even when all the evidence is viewed in a light most
favorable to the complainant, insufficient evidence exists to create a
genuine dispute about whether the agency's actions were discriminatory.
The record reveals insufficient evidence to establish a prima facie case
that complainant was subjected to a hostile work environment because
of his race. Furthermore, the record reveals insufficient evidence to
establish a prima facie case that complainant was reassigned because of
prior EEO activity.
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
_____4/11/05_____________
Date