01a53947
11-04-2005
Roger A. Guthrie, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Bureau of Prisons), Agency.
Roger A. Guthrie v. Department of Justice
01A53947
November 4, 2005
.
Roger A. Guthrie,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
(Bureau of Prisons),
Agency.
Appeal No. 01A53947
Agency No. P-2004-0105
Hearing No. 310-2004-00406X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a Medical Officer at the agency's
Carswell Federal Medical Center in Fort Worth, Texas, filed a formal EEO
complaint on January 14, 2004, alleging that the agency discriminated
against him on the bases of his race (Caucasian), sex (male), and color
(White) when on April 6, 2004, management reprimanded him for Failure
to Follow his Supervisor's Instructions on September 19 and October 10,
2003.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that assuming, arguendo, complainant established a prima
facie case of race, color, and sex discrimination, the agency nonetheless
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the agency's dress-code states that "non-uniformed staff are
expected to serve as examples of proper dress" with the preferred attire
for male staff members being "a suit or sports-coat/trousers worn with a
shirt and tie." (Report of Investigation, Tab 14). The AJ found that on
September 19, 2003, complainant reported to work wearing casual clothing
and was advised by his supervisor (S1) that he was dressed inappropriately
and that he should report to work the next day wearing a suit and tie.
(Hearing Transcript, 38-40; 50; 57). On complainant's next scheduled
work day, September 24, 2003, complainant arrived wearing casual pants,
a surgical scrubs top, and a novelty tie, which complainant stated
was "a shirt and tie." (H.T. 40). Complainant was instructed by S1
to go home and change into proper work clothing. (H.T., 49-50; 58).
The AJ found that S1 also issued a memorandum to the warden regarding
complainant's actions. (R.O.I., 100; H.T., 50). On October 10, 2003,
complainant reported to work wearing a Hawaiian shirt, and was again told
that his attire was inappropriate and was ordered to go home and change.
(R.O.I., 97). The warden also ordered an investigation into these
incidents which resulted in complainant being issued a letter for a
proposed three-day suspension, which was later reduced to a Letter
of Reprimand. (R.O.I.,74-76; 90-92). The AJ found that although
complainant argues that he was the only doctor required to wear a shirt
and tie, he received the reprimand at issue for intentionally defying the
instructions of his supervisor after being repeatedly counseled about
his inappropriate attire. Further, the AJ found that the record supports
the agency's contention that all employees were required to conform
to the dress-code and were not permitted to dress in casual attire.
(AJ Decision at 5-6). The AJ concluded that complainant failed to show
that the agency's articulated reasons for its actions are a pretext
for discrimination.
On appeal, complainant reiterates his contention that he was subjected
to discrimination when he was reprimanded for not dressing appropriately.
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.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We concur
with the AJ's finding that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's race, color, or sex. Accordingly, we discern no
basis to disturb the AJ's decision. Therefore, we affirm the agency's
final order.
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
November 4, 2005
__________________
Date