01990802
03-28-2002
Elbert Hicks, Complainant, v. James G. Roche, Secretary, Department of the Air Force, Agency.
Elbert Hicks v. Department of the Air Force
01990802
03-28-02
.
Elbert Hicks,
Complainant,
v.
James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01990802
Agency No. LEIC 95-01
Hearing No. 100-98-7338X
DECISION
On November 4, 1998, Elbert Hicks (hereinafter referred to as complainant)
filed a timely appeal from the October 19, 1998, final decision of the
Department of the Air Force (hereinafter referred to as the agency)
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated
against him on the bases of disability (back) and in reprisal (prior
Title VII activity) when he was issued a letter of admonishment, an EEO
counselor allegedly refused to counsel him, and derogatory remarks were
allegedly made.
Complainant filed his formal complaint on April 3, 1995. Following
an investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). On August 25, 1998, the AJ issued a decision
without a hearing finding that the agency did not discriminate against
complainant, and the agency adopted the AJ's decision.
The salient events are as follows. Complainant worked as a mail clerk
at a military facility in Keflavik, Iceland. He alleged discrimination
when: (a) in December 1994, he was involved in a verbal confrontation
with a superior officer and was issued a letter of admonishment; (b)
he sought EEO counseling, but the counselor was unable to complete the
counseling, and complainant was assigned another counselor; and (c)
when he was leaving the post for another assignment, his co-workers made
derogatory remarks. The agency explained that complainant's behavior
merited an admonishment, that a new EEO counselor was assigned to him,
and that the alleged remarks were not made. The AJ found that complainant
established a prima facie case on all bases and, following the three-part
analysis in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973),
found that complainant had not presented any evidence to demonstrate that
the agency's explanations were not true or based on illegal considerations
or discriminatory animus. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983).
In his appeal statement,<1> complainant asserted that the derogatory
remarks created a hostile environment and that he sought to show a
continuing violation.<2> After a careful review of the record, the
Commission finds that the conclusion of the AJ was correct.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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.
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
_____03-28-02_____________
Date
1Other issues raised by complainant, e.g., a resignation letter and a
workers' compensation claim, were not raised by this complaint.
2After remand by the Commission in EEOC Appeal No. 01965135 (April
23, 1997), all of complainant's claims were accepted and processed by
the agency.