Bryan L. Hill, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 26, 2002
01A13647 (E.E.O.C. Sep. 26, 2002)

01A13647

09-26-2002

Bryan L. Hill, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Bryan L. Hill v. Department of the Navy

01A13647

September 26, 2002

.

Bryan L. Hill,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A13647

Agency Nos. 98-60530-001 and 00-60530-006

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his 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.; Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>;

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 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 decision.

BACKGROUND

The record reveals that during the relevant time, complainant was

employed as a Computer Systems Acquisition Analyst, DP-301-04, and

later, as a result of a RIF action, as an Automated Data Processing

(ADP) Resources Manager, DP-301-04, at the agency's Naval Air Warfare

Center, Weapons Division, China Lake, CA facility. Complainant sought

EEO counseling and subsequently filed a formal complaint on November 19,

1997, and a second complaint on April 15, 2000.<2>

Complainant's allegations were amended numerous times and consist of

claims that he was discriminated against on the bases of mental disability

(perceived senility), age (D.O.B. 10/23/41), sex (male) and/or reprisal

(prior EEO activity) when he was harassed and subjected to a hostile

work environment, e.g., disparaging statements were made regarding his

character; his job responsibilities were transferred; an employee who

might have been �bumped� in a RIF threatened him with violence; there

was an attempt to deprive him of his RIF rights; and threats against him

were ignored. In addition to the harassment allegations, complainant

asserted a number of claims alleging deficiencies in the processing of

his complaints, e.g., an EEO counselor failed to include the full and

complete testimony of a witness in a final report; the agency's Deputy

EEO Officer (DEEOO) dismissed complainant's original complaint;<3>

the EEO office limited the time for an outside investigation; an EEO

counselor utilized the term �use� rather than �obtain� or �retain�

when discussing complainant's possible representation by counsel; the

EEO office was a �tool� of the agency; the DEEOO stated that she would

look into �concerns�; the DEEOO refused to provide a court reporter,

and complainant was advised it could take six months to a year to be

provided a final agency decision.

At the conclusion of the investigations, complainant was informed of

his right to request a hearing before an EEOC Administrative Judge

or alternatively, to receive a final decision by the agency. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued a final decision. In its FAD,

the agency concluded that complainant had failed to establish that the

alleged events rose to the level of actionable harassment, or that he

had been otherwise subjected to discrimination based upon his age, sex,

disability, and/or reprisal for his EEO activity.

CONTENTIONS ON APPEAL

Complainant contends that the agency deliberately failed to develop an

appropriate factual record for his complaints and that the agency's

evidentiary record is tainted by the actions of the agency and the

agency's agent in this matter, the Office of Complaint Investigations<4>.

The agency requests that we affirm its FAD.

ANALYSIS AND FINDINGS

Complainant contends that the agency conducted insufficient investigations

of his complaints. The requirement that an agency investigate complaints

of discrimination is codified at 29 C.F.R. � 1614.108. The agency

has a duty to develop an impartial and appropriate factual record upon

which to make findings on the claims raised by the written complaint.

An appropriate factual record is one that allows a reasonable fact

finder to draw conclusions as to whether discrimination occurred.

See 29 C.F.R. � 1614.108(a). The investigator is required to conduct

a thorough investigation--identifying and obtaining all relevant

evidence from all sources regardless of how it may affect the outcome.

EEOC Management Directive (MD)-110, p. 6-8 (Nov. 9, 1999). While this

requirement does not compel the investigator to engage in irrelevant and

superfluous inquiry, it does require that the investigator exhaust those

sources of information likely to support the positions of complainant

and the agency. Id.

If a complainant wishes to further develop the factual record for a

decision, a hearing before a Commission Administrative Judge is the

opportunity provided during which time the record can be supplemented

and witnesses examined. Id. p. 7-1. Complainant elected not to have

a hearing on his complaints. If complainant believed that there was

insufficient information in the record in his favor, it would have been

appropriate for him to request a hearing and elicit the information

he considered deficient. The record contains transcripts, affidavits,

letters, and e-mails, and while the investigator excluded some witnesses

submitted by complainant, exclusion was based upon a determination

that their testimony would be either duplicative or irrelevant to the

investigated issues. After a careful review of the record, we find that

the agency conducted investigations sufficient to make findings on the

relevant matters raised by complainant in his complaints.

Concerning complainant's allegations concerning his dissatisfaction

with the processing of his complaints, i.e., �spin off� complaints, the

Commission's policy provides that a complainant should be referred to the

agency official responsible for the quality of complaints processing,

and the agency should earnestly attempt to resolve any dissatisfaction

with the complaint process as early and expeditiously as possible.

Id. p. 5 -25. The record reflects agency responses to complainant's

EEO processing concerns. The �spin off� claims were properly dismissed.

Turning to the gravamen of complainant's underlying complaints,

harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, religion, or protected

activity under the anti-discrimination statutes is unlawful, if it is

sufficiently patterned or pervasive. McKinney v. Dole, 765 F.2d 1129,

1138- 1139 (D.C. Cir. 1985). Here, the witnesses' testimony regarding

complainant's harassment claims is in conflict with complainant's

assertions. For example, the record reflects that complainant's

understanding that the agency perceived him as senile was based on

�second hand� information of what employees of a different organizational

segment stated while at a local restaurant, while witnesses deny the

account and others describe complainant as articulate, intelligent,

and persuasive. Also, the record reflects that complainant's statement

concerning a co-worker's alleged death threat was denied by the woman,

and also denied is that the woman had a history of �brutal� violence

which was described by the co-worker as putting a hand on someone's

shoulder approximately ten years ago. Further, the record reflects

that the two individuals who supposedly laughed and mocked complainant

denied the claim. The record further reflects that agency officials did

not attempt to affect complainant's RIF rights, or to force complainant

to retire. As a result of the opposing witnesses' testimony as to each

claim, we conclude that there is insufficient evidence that complainant

was subjected to sufficiently patterned or pervasive harassment related

to his gender, age, perceived disability, and/or reprisal which had the

purpose or effect of unreasonably interfering with his work performance

and/or creating a hostile work environment.

The allocation of the burden of proof as well as the burden of persuasion

in the private sector applies equally to the federal sector. At all

times, complainant retains the burden of persuasion and it is his

obligation to show by a preponderance of the evidence that the agency

acted on the basis of a prohibited reason. U.S. Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 715-716 (1983). Accordingly, we cannot

conclude that complainant has carried his burden of establishing that,

more likely than not, he was subjected to discrimination and/or reprisal.

CONCLUSION

After a review of the record in its entirety, including arguments and

evidence not specifically addressed in this decision, it is the decision

of the Equal Employment Opportunity Commission to AFFIRM the agency's

final decision because the preponderance of the evidence of record does

not establish that discrimination occurred.

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

September 26, 2002

Date

1 The Rehabilitation Act was amended in 1992

to apply the standards in the Americans with Disabilities Act (ADA)

to complaints of discrimination by federal employees or applicants

for employment.

2 Formal complaints filed on September 10, 1999, and December 24, 1999,

were consolidated with 98-60530-001.

3 The Commission affirmed the agency's dismissal of three allegations,

and reversed the agency's dismissal of two allegations. See Hill

v. Department of the Navy, EEOC Appeal No. 01985086 (September 3, 1999).

4 The Office of Complaint Investigation (OCI) is a component of the

Department of Defense-Civilian Personnel Management Service.