01991416
08-29-2002
Tommy L. Taylor, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Tommy L. Taylor v. Department of the Treasury
01991416 and 01A05211
August 29, 2002
.
Tommy L. Taylor,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal Nos. 01991416, 01A05211
Agency Nos. TD-97-1038, TD-98-1342, TD-96-1159R
Hearing Nos. 100-98-7041X, 100-99-7691X
DECISION
Complainant timely initiated appeals from the agency's final orders
concerning his equal employment opportunity (EEO) complaints 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 appeals are accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final orders.
Appeal No. 01991416 (Agency No. TD-97-1038)
During the relevant time-frame, complainant was a Lieutenant with the
Uniformed Division of the U.S. Secret Service. Complainant filed a
formal EEO complaint alleging race and reprisal discrimination when,
in September 1996, he received a 14-day suspension and subsequently was
not selected for promotion to the rank of Captain.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
With regard to the suspension, which complainant received for accessing a
superior's unlocked files without permission, and for attempting to access
another superior's locked files without permission, the AJ found that
the agency met its burden to explain its actions. More specifically,
the agency explained that a 14-day suspension was an appropriate
penalty because complainant, who was a supervisor, initially denied
that the incident had occurred; subsequently admitted his actions after
learning that the coworker who reported the incident was willing to
undergo a polygraph examination; and attempted to blame the coworker for
inaccurately reporting the incident. The AJ discounted complainant's
explanation, in response to the agency's motion for summary judgment,
that he had merely been conducting a key-and-lock survey, noting that
this explanation had never been advanced prior to the motion for summary
judgment. The AJ found no evidence of pretext.
With regard to the non-promotion, the AJ found that the agency explained
its actions by referring to the suspension, as outlined above. The AJ
further found that complainant had not established pretext.
The agency's final order adopted<1> the AJ's finding of no discrimination
with regard to both issues of the complaint.
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. The Commission finds that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. The Commission notes that complainant failed to present
evidence that the agency's actions were in retaliation for complainant's
prior EEO activity or were motivated by discriminatory animus toward
complainant's race. The Commission discerns no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
the Commission affirms the agency's final order.
Appeal No. 01A05211 (Agency Nos. TD-98-1342, TD-96-1159R)
As was the case in the complaint discussed above, during the relevant
time-frame, complainant was a Lieutenant with the Uniformed Division of
the U.S. Secret Service. Complainant filed two formal EEO complaints
alleging race and reprisal discrimination when, respectively, he received
a 14-day suspension and subsequently was not selected for promotion to
the rank of Captain.<2>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). After a hearing, the AJ issued a decision
finding no discrimination.
With regard to the suspension, the AJ found that the agency met its burden
of explanation. The agency explained that complainant was suspended
because he made substantive changes to official reports prepared in
the wake of a shooting at the White House, so that the details provided
in the report did not accurately reflect what had actually transpired
with regard to the actions of two of his subordinates. The changes
were seized upon by the defense attorneys of the accused, and became a
serious issue in the resultant criminal proceeding. The agency noted
that a comparative employee was not disciplined for making alterations
to official incident reports because the changes made by that employee
were incidental changes to correct grammar, to obscure classified
information, or to insure that the contents of the reports comported
with the statements of the witnesses who had given them. The AJ found
that complainant did not establish that the agency's actions in this
regard were motivated by discriminatory animus.
With regard to the non-promotion, the AJ noted that complainant was
ineligible for promotion on account of the �assessment center� score
portion of his promotion ranking. The AJ noted that the agency official
whom complainant accused of harboring racist and retaliatory animus did
not participate in the ranking proceedings, and further noted testimony
that the relevant employment tests were graded anonymously, making it
unlikely that anyone could have improperly influenced complainant's score.
The AJ found that complainant had not established that the agency's
actions were motivated by discriminatory or retaliatory animus.
The agency's final order implemented the AJ's finding of no discrimination
with regard to both complaints.
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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. The Commission finds that
the AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. The Commission notes
that complainant failed to present evidence that the agency's actions were
in retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race. The Commission discerns
no basis to disturb the AJ's decision. Therefore, after a careful review
of the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, the Commission affirms 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
August 29, 2002
__________________
Date
1Under the Commission's regulations then in effect, an agency could
accept, reject, or modify the decision of the AJ. Under the Commission's
present regulations, the decision of an AJ is binding on both parties,
subject to the right of appeal to the Commission. See 29 C.F.R. ��
1614.109, 1614.110.
2Although these are the same general types of claims entertained in
Appeal No. 01991416, the instant appeal pertains to events occurring in
1995 and 1998, respectively.