0120070678
09-19-2007
Nicholas Busbee, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.
Nicholas Busbee,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120070678
Agency No. JQ05001
Hearing No. 370-2005-00413X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 2, 2006 final decision 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. Complainant
alleged that the agency discriminated against him on the bases of race
(African-American), sex (male), and color (Black) when:
1. on May 20, 2004, he was allegedly subjected to racial profiling
when he was arrested and transported by DDJC police officers to the San
Joaquin County Jail;
2. on June 3, 2004, he was harassed by two DDJC police officers
who were conducting a visual check of his work area;
3. on June 16, 2004, he was harassed by two DDJC police officers
who escorted him off the installation;
4. on August 7, 2004, a DDJC management official pushed him from
behind while he was resting during break; and
5. on September 8, 2004, he was suspended from duty for 14 days
for being absent without leave (AWOL).
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 agency's final decision.
Upon review we find that even assuming arguendo that complainant
established a prima facie case as to all bases, we find the agency
articulated legitimate nondiscriminatory reasons for its actions.
Specifically, with respect to issue (1), complainant was arrested because
his driver's license was suspended, and a warrant had been issued for
his arrest. The record reveals that the Stockton, California Police
Department asked DDJC to transport complainant to the San Joaquin
County Jail. Regarding issue (2), two officers were assigned to check
the warehouses. According to the record, the warehouses are randomly
inspected each day. During the subject inspection on June 3, 2003,
complainant and the officers apparently exchanged words. Complainant
alleged that the officers harassed him, and the officers maintained
that they were only there to inspect the warehouse when complainant used
derogatory words in a low voice while holding a box cutter.
With respect to issue (3) complainant was escorted off the installation
because employees are not allowed to remain in the warehouse once their
shifts are over. Complainant was told that he would have to wait for his
ride outside of the Depot. He was followed to the gate by a police car to
insure that he left the premises. He was not offered a ride because the
officer thought it would be construed as misuse of a government vehicle.
Regarding issue (4) it was believed that complainant was sleeping on
the job. The Bin Division Deputy Chief, (Chief) walked by and noticed
complainant with his head resting on his wrists and forearms. He touched
complainant and asked if he was sleeping. Complainant responded that
he was not. The Chief later learned that complainant was on a break.
Finally, with respect to issue (5), complainant was suspended for 14
days for being absent without leave (AWOL) because he was in jail, he
had no leave, and the agency did not know how long he would be out.
Additionally, it was his third AOW offense and although removal was
suggested he was suspended based on the table of penalties because
suspension as disciplinary actions was progressive in nature. To show
pretext, complainant argues that the police action was based on racial
profiling, but the record show that each time the police involvement
resulted from actions taken by complainant.1 Therefore, the Commission
finds that complainant failed to show that the agency's actions were
pretext for prohibited discrimination. Moreover, the Commission agrees
that complainant has not demonstrated that he was harassed based on his
race, color, or sex. We also find that even if all five incidents were
considered together, the conduct complained of was not sufficiently severe
and pervasive to create a hostile work environment. Accordingly, we find
that the preponderance of the evidence of record does not establish that
discrimination occurred.
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
___9/19/07_______________
Date
1 With regard to issue (1), we note that the record indicates that
the agency's normal practice was to check the Department of Motor
Vehicles' records in order to determine whether employees have valid
driver's licenses. Also, agency police officers have the authority to
apprehend and detain employees and to transport, based on availability,
individuals to outside agencies. Finally, agency police officers have
the authority to handcuff and to read arrest rights to individuals when
they are transported.
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0120070678
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070678