01-2006-3466_McGlathery
11-20-2007
Dave M. McGlathery, Complainant, v. Michael D. Griffin, Administrator, National Aeronautics and Space Administration, Agency.
Dave M. McGlathery,
Complainant,
v.
Michael D. Griffin,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 01200634661
Agency No. NCN04MSFCA020
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 13, 2006 final decision concerning
his equal employment opportunity (EEO) complaint alleging 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Complainant alleged that the agency discriminated against
him on the bases of race (Black), age (D.O.B. 09/27/36), and in reprisal
for prior protected EEO activity under Title VII of the Civil Rights Act
of 1964 when: (1) he was unreasonably restricted in regard to his use
of leave and flexibility in his work area from September 19, 2003 through
the present; (2) he was subjected to repeated acts of disparate treatment
in job assignments, requests for transfers, awards, recognitions and
his performance requirements from October 15, 2003 through the present2;
and (3) on September 2, 2004, he was given a proposed 14-day suspension
from duty for alleged "Misuse of government Information Technology (IT)
Resources."
Time and Leave
Complainant's Group Leader (GL) (Asian, DOB: December 1, 1961) explained
that complainant took leave almost every day without notifying the
management chain. His irregular attendance made it difficult to manage
work. Complainant was counseled and advised of the problem. He missed
many meetings, including team meetings. GL indicated he sought counseling
from Human Resources Department (HR), and based his decisions on advice
received from HR. With respect to Absence without Leave (AWOL) charges,
GL stated that when complainant made appropriate requests for leave,
leave was granted. However, on the dates in question, complainant failed
to request leave properly and was therefore charged AWOL. GL also stated
he issued the amendment with regard to leaving the building because he
noticed complainant was signing out past the end of his tour of duty.
Complainant's job did not require him to remain at the office late.
GL believed complainant's sole purpose for staying late was to use
government property for his outside employment activities. GL also avers
the voting leave incident was no more than his misinterpretation of the
regulations.
Performance, Reassignment and Awards
GL described complainant's performance difficulties in his affidavit,
and in the Personal Improvement Plan (PIP). The record shows complainant
was advised of his performance difficulties before the PIP was issued.
On September 4, 2003, GL prepared a memorandum for the record on
complainant's performance. GL noted that complainant was asked for the
status of three audit reports which were late. Complainant was informed
that his performance was not acceptable. He was also reminded of time
and attendance requirements and the need to call in when he was not
coming to work.
Complainant had performance difficulties in the past. An evaluation
of his job performance by his former Team Leader, for the period March
2001 to March 2002, cited his poor attendance (absent 25% of time); his
unavailability to sit in project meetings or provide advice/assistance
to customers; and complainant's difficulty working in groups of peer
engineers and managers. In this evaluation, the Team Leader also noted
that he reminded complainant that he cannot use government facilities
for his ministerial duties.
In November 2003, complainant requested a reassignment. GL stated he
concurred in the reassignment, before sending it forward. Complainant's
second-level supervisor (S2) indicated that at some point he was asked
for input. He believed he had to address complainant's performance and
time and attendance problems before he could approve a reassignment. In
February 2004, S2 shared those concerns with complainant. In August 2004,
he had another meeting with complainant. At that time, since complainant
was no longer under time and attendance sign in/out requirements and
his performance had improved, S2 approved the reassignment but advised
complainant that since the division was undergoing a reorganization,
he would not be reassigned until the reorganization was effected in
October 2004. The record shows complainant was reassigned after the
reorganization.
The record also shows awards were issued in or around August of 2004.
Complainant did not receive an award. Other individuals received awards,
including Black males, one approximately the same age as complainant.
GL affirmed that he did not provide an award for complainant because
his performance was not deserving of an award, and he had been placed
on a PIP during the performance cycle.
Suspension
GL proposed the complainant's suspension based on evidence retrieved
from complainant's computer which showed numerous documents related to
his outside employment activity, specifically serving as a minister for
the Pine Grove Church. GL affirmed that he advised all employees at a
staff meeting of the policy regarding government equipment, and he also
met with complainant on May 4, 2004, to discuss the policy. When he
later saw a document on complainant's computer screen that was non-work
related, he contacted HR. The HR Specialist requested the examination
of complainant's hard drive. The HR Management Advisor confirmed that
when she was informed by GL of possible IT misuse, she asked Protective
Services to copy complainant's computer hard drive and provide copies of
non-NASA related materials. S2 stated that he was the deciding official
on the suspension. S2 reviewed complainant's written response, his oral
response of October 13, 2004, and reviewed the entire record, including
NASA's table of penalties. S2 further affirmed that complainant's age,
race or prior EEO activity, were not considered in his decision making.
He did consider complainant's long history of service and the absence
of disciplinary actions in mitigating the suspension to a five-day
suspension.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, 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.3
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
November 20, 2007
__________________
Date
1 Due to a new data system, complainant's case has been re-designated
with the above-referenced appeal number.
2 The agency dismissed complainant's allegations of discrimination that
occurred prior to October 15, 2003, on the basis of untimely EEO contact.
Upon review of the record, we affirm the agency's dismissal.
3 We find that complainant failed to present sufficient evidence of
pretext or discriminatory animus.
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0120063466
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036