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.