0120081745
08-01-2008
David R. Brown, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
David R. Brown,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081745
Agency No. 9V1M06232
DECISION
On February 27, 2008, complainant filed an appeal from the agency's
February 27, 2008 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. The appeal is deemed timely and
is accepted pursuant to 29 C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant worked
as a Pneudraulic Systems Mechanic at an Oklahoma facility of the agency.
In June 2006, complainant filed an EEO complaint alleging that the agency
subjected him to hostile work environment harassment on the bases of color
(Black) and reprisal for prior protected EEO activity when (1) between
September 20, 2005 and December 14, 2005, there were five annotations in
his "971" for late arrival to work, (2) from January 2006 to April 2006,
he was denied the opportunity for reassignment to a limited duty job
while he recovered from an injury, (3) on March 17, 2006, he received
a written counseling for excessive sick leave usage, (4) on June 9,
2006, he was denied leave and charged as absent without leave; and (5)
on June 12, 2006, he was temporarily moved to another building.
During an agency investigation, complainant's first level supervisor
(S1) stated: regarding (1) and (3), complainant used excessive sick
leave (accrued 52 hours of sick leave within a six month period and
used 160.25 hours) although he was verbally counseled about the matter
and never documented a chronic illness; and, as to (4), he did not trust
complainant's need to be late because, toward the beginning of his shift,
complainant called twice within five minutes with two different reasons
for his lateness and then arrived seven hours late. As to (2), the agency
stated that complainant wanted a limited duty position answering phones,
but that position was given to a coworker who could not sit or stand
for long periods of time and complainant was given a bench position
within his temporary medical restrictions. (Specifically, the agency
stated that S1 would take work to complainant to perform at his bench.)
Regarding (5), complainant's second level supervisor (S2) stated he
moved complainant because S1 and complainant made threat allegations
against each other and neither could be verified so complainant was
sent to work with another supervisor in another building temporarily.
S2 stated that complainant's relocation continued after a coworker made
allegations of inappropriate behavior against complainant.
Following its investigation, the agency informed complainant of his
right to request a hearing before an EEOC Administrative Judge (AJ).
When complainant did not request a hearing within the statutory time
frame, the agency issued a final decision. In its final decision,
the agency found that complainant failed to establish a hostile work
environment or that the agency's actions were based on discriminatory
factors.
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we AFFIRM
the final agency decision. We agree that complainant failed to
show that the agency's actions were based on impermissible motives.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 1, 2008
__________________
Date
2
0120063400
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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