01A34675
07-22-2004
Anthony V. McClash, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Anthony V. McClash v. Department of the Navy
01A34675
July 22, 2004
.
Anthony V. McClash,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A34675
Agency No. DON-01-65886-004
Hearing No. 150-A2-8066X
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, an Aircraft Engine Worker at the
agency's Compressor Repair Shop, Naval Aviation Depot (NADEP), filed a
formal EEO complaint on January 28, 2001, alleging that the agency had
discriminated against him on the basis of reprisal for prior EEO activity
when he was harassed by his supervisor (S1) continuously from the period
between September 21 to December 18, 2000. Complainant contends that S1
demeaned him in front of coworkers, denied sick and annual use or lose
leave, denied duty time to attend a holiday luncheon, told him not to
take extra time to brush his teeth after lunch, and denied representation
during a discussion of his previous EEO complaint.
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 complainant failed to establish a prima facie case
of reprisal discrimination. Specifically, the AJ found that complainant
failed to demonstrate that S1's conduct was sufficiently severe and
pervasive as to create a hostile work environment. The AJ concluded that
S1 may have yelled at complainant in front of other employees, but that
this incident in itself was not enough to constitute harassment. The
agency's final order implemented the AJ's decision.
Complainant on appeal, restates arguments made in the previous hearing,
and the agency requests that we affirm its final order.
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 note that
complainant failed to present evidence that any of the agency's actions
were in retaliation for complainant's prior EEO activity. The record
reveals that S1 verbally reprimanded other coworkers at the same time
as complainant. (Hearing Transcript (HT) at 40; Investigative Exhibit
(IE) B-1 1 at 64) Complainant's coworkers testified that S1 expressed
his opinions loudly and became frustrated with complainant, but they did
not recall S1 acting aggressively. (HT at 47; 52; 93; IE F-6 at 106).
The record further reveals that other coworkers noticed complainant
was often absent from his work station, used the telephone often and
took extra time to brush his teeth daily. (HT 115;120; IE F-5 at 99).
S1 states leave was granted to another employee and not complainant
because that employee had an emergency (HT at 206).
On the issue of complainant's lack of EEO representation, the AJ
concluded that S1 and the work leader were attempting to offer complainant
work he had requested, therefore union steward representation was not
necessary. The record supports that S1 asked complainant if he would
like a transfer to the cases section, and S1 said a union steward was
unnecessary because he requested case duty before. (HT 214-216; 293-294).
We find, therefore, that the record supports the AJ's findings that S1's
actions were not so severe or pervasive so as to create a hostile work
environment, and we discern 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, 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
July 22, 2004
__________________
Date