01a50181
03-10-2005
George W. Marthers III v. Department of Justice
01A50181
March 10, 2005
.
George W. Marthers III,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A50181
Agency No. D-02-03666
Hearing No. 170-A3-8255X
DECISION
Complainant appeals to the Commission from the agency's September 10, 2004
decision finding no discrimination. Complainant alleges discrimination
on the bases of race (White) and in reprisal for prior EEO activity
which subjected him to a hostile work environment and included the
following incidents:
On December 17, 2001, complainant had a meeting with his supervisor,
Mr. X, who stated, �You're on the hot seat.�
On January 7, 2002, Mr. X held a meeting with the Special Support Unit
(SSU) where he discussed a strict adherence to tour-of-duty hours and
stated his priorities in expanding areas of exposure for the Demand
Reduction program.
On January 14, 2002, Mr. Y held a meeting where he addressed the issue
of recruitment and his hope that the agency would be able to reach
Black and White female applicants.
On January 17, 2002, Mr. X told another supervisor of his dissatisfaction
with the actions and attitudes of the Black Special Agents under the
prior leadership.
Mr. X forbid complainant to contact Headquarters in the future to request
an extension on his Confidential Source Program (CS Program) checklist.
In February 2002, Mr. X directed complainant to �begin putting a CS
inspection checklist form into each of the informant files.�
Complainant did not like how Mr. X spoke to him and how he gave
complainant a hard time.
Following a hearing, an EEOC Administrative Judge (AJ) issued a decision
on July 29, 2004, finding that complainant had not been discriminated
against. Specifically, the AJ found that the complainant failed to prove
a prima facie case for hostile work environment based on race or reprisal.
The AJ also found that the agency presented legitimate, nondiscriminatory
reasons for its actions, which complainant failed to rebut. The agency,
on September 10, 2004, issued a decision adopting the AJ's decision.
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.
The Commission agrees with the AJ that complainant has failed to show
by persuasive evidence that any of the alleged harassing incidents were
motivated by race discrimination or retaliation. The AJ's decision is
supported by substantial evidence in the record.
The agency's decision finding no discrimination 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(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
March 10, 2005
__________________
Date