Donald J. Reed, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 17, 2007
0120071103 (E.E.O.C. May. 17, 2007)

0120071103

05-17-2007

Donald J. Reed, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Donald J. Reed,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120071103

Agency No. 03-62381-009

Hearing No. 120-2006-00068X

DECISION

Complainant timely initiated an appeal from the agency's final order

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 accepted pursuant to 29 C.F.R. � 1614.405(a).

During the period at issue, complainant was employed as a Chief Steward,

WM-9968-28, at the agency's CIV/MAR Pool, APMC Virginia Beach, Virginia.

The record reflects that from October 27, 2000 to August 8, 2002,

complainant was assigned as the Chief Steward on the United States

Naval Ship (USNS) Mount Baker. The record further reflects that from

November 29, 2002 to February 9, 2003, complainant was assigned as the

Chief Steward on the USNS Big Horn, Military Sealift Command (MSC).1

Complainant filed two formal complaints on February 20, 2003 and July 16,

2003, respectively. Therein, complainant claimed that he was subjected

to harassment on the bases of race (Caucasian) and in reprisal for prior

EEO activity.

The agency consolidated complainant's two complaints for investigation.

The record reflects that the agency framed complainant's claims as

follows:

Whether complainant was subjected to harassment based on race and in

reprisal for prior EEO activity when:

(1) hours complainant worked on the USNS Mount Baker were reduced by

the Junior Supply Officer (JSO);

(2) complainant was instructed by JSO to add one hour of overtime to

each cook's daily schedule; however, the same rationale did not apply

to complainant;

(3) complainant was instructed by JSO to spend all money allocated for

feeding the crew;

(4) JSO instigated a cooks' complaint meeting;

(5) complainant was restricted to sixty-five (65) hours of overtime per

pay period by JSO;

(6) complainant reported the theft of a large stuffed moose figure to

the Supply Officer and no action was taken;

(7) JSO failed to take action against the Chief Cook when the Chief Cook

failed to report for scheduled sanitation duty;

(8) all the records in complainant's personal log were deleted;

(9) the Chief Cook received a monetary award and complainant did not;

(10) JSO did not inform complainant that the Third Cook failed basic

cooking school;

(11) complainant's request for leave was not approved;

(12) JSO approved leave for the cooks but did not inform complainant;

(13) complainant was given a Letter of Reprimand;

(14) JSO approved leave for numerous Steward Utilitymen without consulting

complainant and then informed complainant to balance the workload without

spending extra overtime money;

(15) complainant recommended a named Supply Utilityman for promotion to

Third Cook and was informed by JSO that it would not be fair because the

Breakout Man had not received the opportunity to be tried as Cook and

instead a temporarily promoted Supply Utilityman new hire was assigned

as Third Cook;

(16) following extended meetings with JSO, the new hire Supply Utilityman

claimed that complainant embarrassed him while on duty and as a result,

complainant was paid off the ship without notification until 1900 of

the day prior to USNS Mount Baker's departure at 0900 the following day;

(17) complainant's personal belongings were made unavailable to him for

over a month when he was paid off the USNS Mount Baker;

(18) a named Captain attempted to have complainant suspended for

twenty-one (21) days;

(19) complainant did not receive his Subsistence and Quarters allowance

while he was pending disciplinary action;

(20) complainant contests the disciplinary action and was granted a

review by a named agency official. The matter was adjudicated and a

final decision on the discipline would be issued upon complainant's

completion of a series of classes and upon the receipt of an evaluation

by personnel on his next assignment;

(21) complainant was not assigned to a ship after being paid off USNS

Mount Baker for one hundred eleven (111) days;

(22) complainant was relieved from the USNS Big Horn over five weeks

earlier than he had been informed, in order to assure his attendance at

the next scheduled course, six weeks prior to the course commencement;

(23) complainant's personal belongings were made unavailable to him and

he was forced to live without the items that he had no time to pack and

remove from the USNS Big Horn;

(24) subsistence allowance was withheld for the two (2) week period

leading up to the date he signed a document connoting he was being placed

in a pending disciplinary status;

(25) complainant's attempts to resolve this issue via grievance

process were rebutted and he did not receive a response to his last

correspondence;

(26) a Marine Placement Specialist did not respond to complainant's

request for stress management training;

(27) an unsatisfactory evaluation was submitted by the USNS Mount Baker

without complainant's review combined with a distortion of interviews

selected by JSO, in regard to the EEO complaint file against complainant,

and the predetermination of guilt referred to by the Master in his

evaluation comments;

(28) complainant was proposed for a twenty-one (21) day suspension for

failure to obey a direct order. However, complainant's current series

of classes and disciplinary actions are based on the Command's perception

that complainant requires training in personnel management and effective

leadership, not on the questionable charge of failure to obey a direct

order;

(29) neither complainant nor his union representative was allowed to

contest the Letter of Reprimand;

(30) complainant was suspended for fourteen (14) days by a named agency

official as retaliation for his original complaint and for informing the

Inspector General's Office of questionable acts by the Supply Officer

and Master of the USNS Big Horn;

(31) complainant received a negative evaluation from the USNS Big Horn

Captain and Supply Officer, both of whom are currently under investigation

by the Inspector General's Office. Complainant did not see the evaluation

nor was it reviewed with complainant; and

(32) complainant attempted to grieve the evaluation and in a letter to

[named agency official] pointed out major discrepancies; however, no

one was ever contacted and the grievance was rejected as timely.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). The agency thereafter filed a Motion to Dismiss.

The record reflects that on April 4, 2006, the AJ issued an

Order. Therein, the AJ dismissed claims (5), (18), (20) and (28) for

raising the same claims that were pending before or were decided by

the agency or the Commission, pursuant to 29 C.F.R. � 1614.107(a)(1).

Specifically, the AJ determined that claim (5) is the same as claim (1)

in the instant appeal; and that claims (18), (20) and (28) are the same

as claim (30) in the instant appeal.

The AJ further dismissed claims (9) and (32) for failure to state a claim,

pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the AJ determined

that complainant attempted to use the EEO complaint process to lodge

a collateral attack on the grievance process and that the proper forum

was within the negotiated grievance process.

On October 24, 2006, the AJ granted the agency's motion for a decision

without a hearing, finding no discrimination. In her decision, the AJ

found that complainant failed to present evidence that any of the agency's

actions were motivated by discriminatory animus towards complainant's race

and retaliation. The AJ further stated that she would not second-guess

the agency's personnel decisions.

Regarding claim (1), the record reflects that JSO, who is also

complainant's first-level supervisor, acknowledged reducing complainant's

hours. JSO stated that noted that complainant "went over the overtime,

his tour of duty was wrong. He wasn't working a complete eight-tour."

JSO further stated that he noted that complainant was working " seven,

seven-and-a-half hours" and frequently worked overtime. JSO stated

that because he felt that complainant's overtime hours were excessive,

he went to the pursuer and "I had him pull all of the chief stewards in

the fleet, east coast." JSO stated that the Mount Baker had a third

steward, and that the third steward's duties were to assist the chief

steward in supervising the supply utilities. JSO stated that because

complainant "had someone to assist him in his duties," he did not have

to work overtime. JSO stated that complainant continued to disobey his

orders not to work more than 65 hours overtime without prior approval.

Finally, JSO stated that he "red-lined" the hours wherein complainant

was not paid for the additional hours.

The record further reflects that the Captain, who is also complainant's

second level-supervisor, stated that complainant's tour was changed "very

slightly, to make sure that in here he has eight actual working hours

of straight time, and then the rest will be premium pay." The Captain

further stated that complainant "was simply told if your hours go over

65, you must have approval. That was all he was told."

Regarding claim (2), JSO stated that he started observing complainant's

hours because he was attempting to understand his progressive cooking

techniques. JSO further stated that he noted two cooks in the gallery

"when they were supposed to be off." JSO stated that he then asked

them why they were working on their off duty and they informed him

that they were just doing their job. JSO stated "so I got all of the

cooks together and I asked them face to face, How many of you-all work

more than one hour allocated to you? All of the hands came up except

for one." JSO stated he went to see the Captain and "I basically told

him that they need an additional hour to complete their daily tasks."

JSO stated that following his meeting with the Captain, he instructed

complainant to add one hour of overtime to each cook's daily schedule.

JSO stated that complainant's reply "to me was, For what? They're not

worth two hours a day. I told him this has nothing to do with what

they're worth. They're getting paid for work rendered."

Regarding claim (3), JSO denied telling complainant to spend all

money allocated for feeding the crew. Specifically, JSO stated that

the representatives on the menu review board indicated they would

like to have specialty ice cream. JSO stated that he then looked at

complainant's returns and noted that he was "turning in - - I can't

remember the figure, but it was in the thousands." JSO stated "so I

went to him, I said. . . we can buy some of those things that was on

that menu review board. I told him, You shouldn't be turning in all of

this money when there's other items that we could purchase." JSO stated

that complainant did not spend some of the money for specialty ice cream.

The record further reflects that the Captain stated that JSO was merely

suggesting that complainant use the leftover money for "additional

niceties." Specifically, the Captain stated that being on a ship

"for a minimum of four months, and maybe six months, and maybe longer.

And you're eating, you know, the same food in the same place every

single day. And that gets a little tiring." The Captain stated that

complainant "really tries to drive it down as low as he possible can.

And I have to tell you that that's not always a constructive thing.

The crew notices things like that."

Regarding claim (4), JSO denied instigating a Cooks' complaint meeting

with S2. JSO further stated that the Captain was the one that called a

meeting with the Cooks. JSO stated that the Captain asked the Cooks,

in the presence of complainant, whether they were working without

compensation, only a Third Cook admitted to working additional time.

The record further reflects that the Captain stated after JSO informed

him that the Cooks had a problem concerning overtime, he called a meeting

on December 14, 2001 to discuss the matter.

Regarding claim (6), JSO stated that complainant would leave the moose in

a chair in the crew's mess overnight and that the moose would frequently

disappear and reappear. JSO further stated "and I have brought it to

his attention more than once that you should not leave it there. And he

would call it his mascot." JSO stated that one day complainant informed

him that his moose disappeared, and he told complainant "well, maybe it

will show up. And it never did. And he never mentioned it to me again."

Regarding claim (7), JSO stated that he did not take action against a

named Chief Cook when he failed to report for scheduled sanitation duty

because complainant "never mentioned anything to me about [Chief Cook]

didn't show up for sanitation."

Regarding claim (8), JSO denied deleting all records in complainant's

personal log.

Regarding claim (9), JSO stated that he initiated the award for the Chief

Cook based on complainant's recommendation. Specifically, JSO stated

that complainant "glorified the chief cook." JSO stated that he did

not recommend that complainant receive an award because he received too

many complaints from the crew about how complainant "treated them, how

he spoke to them, demoralized them. He wouldn't even follow my orders.

Simple orders. So I could not see me giving him an award." Furthermore,

JSO stated that complainant was "very good at putting out a good menu.

But he was poor in other areas that I felt was crucial for his position."

The record further reflects that the Captain stated that if JSO

had recommended that complainant receive an award, he would not have

approved it. Specifically, the Captain stated that having complainant

as a supervisor "who has created so much dissension in this department,

where I'm to the point that the base is telling me that no one wants to

come to the ship - - [named employee]. Basically everyone on the ship

has put in to get off."

Regarding claim (10), JSO stated that he did not inform complainant

that a Third Cook (C3) failed cooking school because of complainant's

character. Specifically, JSO stated that when C3 returned to work from

school, he asked her how she did in cooking school. JSO stated that

C3 informed him that she failed and "seemed very upset behind it, and

she was embarrassed." JSO stated "and I basically knew [Complainant's]

character. He would not have kept it to himself. He would have exploded

it, embarrassed her."

Regarding claim (11), JSO stated that he denied complainant's leave

for June 25-27, 2002 because he was following the Captain's orders.

Specifically, JSO stated "the captain sent all of the department heads

an e-mail saying, No leave will be granted up until - - I believe he

said July 1st, something like that. And I was just following orders."

The record reflects that the Captain stated that he does not recall

complainant had a meeting in Washington D.C. to discuss command job

descriptions from June 25, 2002 to June 27, 2002. The Captain further

stated that if someone in Washington D.C. had called and requested

complainant's present, he would have allowed complainant to attend the

meeting.

Regarding claim (12), JSO stated he and complainant "always talked" about

the Cooks' leave usage. JSO further stated "I even remember going into

detail about how many cooks - - we had agreed that only one cook could

be gone out of the galley at all times." JSO stated that complainant

initialed all of the Cooks' leave slips before handing them to him for

approval.

Regarding claim (13), the Captain stated that he issued complainant a

Letter of Reprimand because "I was having continuous complaints over a

period of many months from the people who were working in [complainant's]

department about the way that he was treating them. I was also

kind of concerned, because they were starting to escalate and come

closer together. They were started to manifest themselves, I believe,

physically." The Captain stated that prior to the issuance of the Letter

of Reprimand, he counseled complainant "on numerous times . . . verbally,

this has to stop, this has to stop, this has to stop." The Captain stated

that he and another Captain had also had "numerous counseling sessions"

with complainant in which they informed complainant that he "continued

to display this intimidating and degrading management style."

Regarding claim (14), JSO denied approving leave for numerous

Steward Utilitymen without consulting complainant and then informing

complainant to balance the workload without spending extra overtime money.

JSO further stated that complainant initialed the Stewards' leave slips

before handling them to him for approval.

Regarding claim (15), JSO stated that he requested a Third Cook from the

base instead of promoting the Supply Utilityman complainant recommended

because he did not follow orders. Specifically, JSO stated that he

instructed complainant "to poll your department during muster. Muster

your people, you're supposed to say, Who's interested in becoming a cook?

That never happened." JSO stated that complainant informed him that

no one was interested in learning how to be a cook but he later learned

from a break-out man that he had asked complainant for an opportunity to

work in the trainee position but never gave him the chance. JSO stated

"and I confronted [complainant] about it. I said, If you're not going

to do like I ask you and do this fair, then nobody's going in there,

and I'll ask for a third cook from the base. That's what I did."

Regarding claim (16), the Captain acknowledged paying complainant

off the ship without notification until 1900 of the day prior to USNS

Mount Baker's departure at 0900 the following day. The Captain further

stated that a new Supply Utilityman (SU) came to his office shaking and

crying due to complainant's intimidation. Specifically, the Captain

stated that complainant told SU "if I cut two holes in this pillowcase

and put it over my head, that that would wipe the smile off your face."

The Captain stated that he was "afraid at some point in time this is going

to spill over into something physical." The Captain stated that he had

to take some kind of action because "at that point, then, it had just

crossed the line for me. Because now it was just to the point that, you

know, basically, if no one is now listening to me, anything can happen."

The Captain stated "I'm to the point where, Look, if you're not going not

take him off the ship, take my off the ship. Because it just doesn't -

- A, it doesn't make sense for me to be here anymore if people aren't

going to listen to me; and B, I don't want to be responsible for this,

you know." The Captain stated that as a consequence of his actions,

complainant was taken off the ship. Furthermore, the Captain stated "as

a matter of general practice, when you pay someone, when you pay someone

off a ship, you don't want to tell them two or three days in advance,

especially when it's under - - in a situation like this. Because . . .

really, anything could happen."

Regarding claim (17), the record reflects that in his deposition,

complainant acknowledged he did not provide a forwarding address until

September 15, 2002, concerning delivery of his personal belongings.

Regarding claims (18), (20), (28) and (30), the Captain stated that

he attempted to have complainant suspended for twenty-one (21) days

for failing to follow a direct order to stay away from SU. The Captain

stated that after SU complained about complainant's behavior toward him,

he felt that complainant had crossed the line and was not going to listen

to him anymore which could lead to serious problems. The Captain stated

that he recommended the suspension because "it was in the mid range."

The Captain stated that he was not involved in the Civilian Personnel

Officer (CPO)'s decision to suspend complainant for 14 days.

The record further reflects that CPO stated that whenever there is a

proposed suspension of more than 14 days from a ship, it would come into

the Labor and Employee Relations office. CPO further stated that her

staff would do research to make sure that the proposed 21-day penalty

is consistent with others in similar circumstances. CPO stated in

complainant's case, she met with complainant and his attorney concerning

the proposed suspension, including two additional charges. CPO stated

that one of the charges was alcohol in his stateroom, and the other one

had to do with failure to obey a direct order.2 CPO stated "I thought

I'd like to see if I can fix his behavior, correct his behavior with

training."

CPO stated that she then arranged to have complainant take training to

assist him in improving his managerial style. CPO stated "so I then

worked with trying to get him on a ship where he could practice what

he learned, okay, in hopes that I would just . . . do away with the

discipline and I wouldn't have to discipline him." CPO stated that she

made arrangements to have complainant assigned to the USNS Big Horn.

CPO stated, however, that several months later, she learned that

complainant was having problems on the new ship. CPO stated that she had

no choice but to issue complainant the 14-day suspension. CPO stated

"I mitigated it from 25 to 14. I dropped - - you know, I gave him the

benefit of the doubt on alcohol...But I felt that the failure to obey and

unprofessional conduct was supported. And that's why I disciplined him."

Regarding claim (19) and (24), the record reflects that in his deposition,

complainant acknowledged he was not entitled to the same Subsistence and

Quarters allowance under the applicable collective bargaining agreement.

Regarding claim (21), the record reflects that pursuant to agency

policy, complainant was not available for a ship assignment while pending

disciplinary action. The record further reflects that during the relevant

time, complainant was taking mandatory classes and on leave.

Regarding claim (22), the record reflects that complainant's supervisor

(S1) while he was assigned to the USNS Big Horn, stated that during the

relevant time the ship was directed to deploy with the battle ground

to the Persian Gulf on a short notice. S1 further stated that because

complainant had "a effective supervisor's/leadership course scheduled

that he needed to attend and, not knowing when, or where, our next port

call would be, it was decided between the Big Horn Captain and [CPO]

that he should be paid off at once to ensure that [Complainant] would

not miss his class convening date. I agreed that this would, indeed,

be the most prudent way to make sure that he would be present at the

next class." S1 stated that based on management's decision, complainant

was relieved from the USNS Big Horn over five weeks earlier than he had

been informed, in order to attend the training mandated by CPO.

Regarding claim (23), S1 stated that he gave complainant approximately

48 hours notice to pack and remove his personal belongings to insure

his attendance at the mandated course. S1 stated, however, complainant

"apparently made no effort to pack any of his belongings during the 48

hour period afforded to him to pack or to make arrangements with any

crewmen to ship his belongings to him."

Regarding claim (26), the record reflects that the former Marine Placement

Specialist (MPS) stated that complainant's request for stress management

training was approved, but that complainant was not available to take

the course. Specifically, MPS stated that the class that complainant

wanted to take was in Washington D.C. "was approved for him to go on

the 28th of April to the 2nd of May of 2003. By the time we got that

notification, [Complainant] was already off the ship, so there was no

e-mail communications or anything I could directly contact him."

Regarding claim (27), JSO stated that he gave complainant an

"unsatisfactory" rating for the period of November 6, 2001 to August

8, 2002. Specifically, JSO stated "I feel that supervising, when you're

in a supervisory position, is extremely important. He fell very short

in that category. He was a very poor supervisor and he treated people

very bad. He abused his position. For those reasons, I felt that he was

overall unsatisfactory. His bad outweighed the good." JSO further stated

that he did not have the time to discuss complainant's evaluation with

him because "I had no idea the captain was paying him off. I found out

that day, that afternoon. So I didn't have time to write the evaluation

or discuss it with him."

Regarding claim (29), the Captain stated that he was not aware of

complainant and his union representative trying to contest the Letter of

Reprimand. The Captain further stated that there is "an appeals process

and that - - you know, basically every disciplinary action that's ever

written on any ship is appealable."

Regarding claim (31), S1 stated that he gave complainant a rating of

"unsatisfactory" for the period of November 29, 2002 to February 8, 2003

because his management style aboard the USNS Big Horn "evoked much turmoil

in the galley." Specifically, S1 stated that complainant's management

style was "arbitrary, brash, demanding, and cynical. If things did not

go his way, his retorts to his subordinates were extreme and at times

rude, demeaning and embarrassing to the employee(s)." With respect to

complainant's assertions that he did not see his performance evaluation

nor was it reviewed with him, S1 stated that the evaluation was presented

to the Big Horn Captain for his signature. S1 further stated that

the evaluation was on the Big Horn Captain's desk when complainant

was called up and "informed of his unsatisfactory marks and the reason

for these." S1 further stated that the fact that complainant "did not

stop by my office, as directed, and sign his evaluation, was simply his

own decision."

Regarding claims (25) and (32), the former Supervisory Personnel

Management Specialist (former Specialist) acknowledged not responding

to complainant's two grievances concerning the Subsistence and Quarters

allowance because they were untimely filed. Specifically, the former

Specialist stated that complainant's grievances "were not untimely,

but, you know, way untimely. If he has seven days, sending something

in five-and-a-half weeks later, it's not even close. So untimely is

untimely."

The record further reflects that CPO stated that she was not aware

of complainant filing a grievance concerning Subsistence and Quarters

allowance. CPO further stated if complainant had filed a grievance "in

writing and we would have responded in writing, and I was, you know,

in the office that day of whatever, I would have reviewed it, because

that's normal practice."

On December 1, 2006, the agency issued a final order implementing the

AJ's finding of no discrimination.

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules of

Civil Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exists

no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,

a court's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. At 249. The evidence of

the non-moving party must be believed at the summary judgment stage and

all justifiable inferences must be drawn in the non-moving party's favor.

Id. At 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case. If a case

can only be resolved by weighing conflicting evidence, summary judgment

is not appropriate. In the context of an administrative proceeding,

an AJ may properly consider summary judgment only upon a determination

that the record has been adequately developed for summary disposition.

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. See

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The Commission finds that the agency articulated legitimate,

nondiscriminatory reasons for its actions as discussed above. Complainant

has not shown that the agency's articulated reasons were a pretext for

discrimination.

Although the AJ did not specifically address complainant's harassment

claim, we find that the incidents of harassment identified by complainant

were neither sufficiently pervasive nor severe to create a hostile

work environment. Therefore, we find that the AJ properly found no

discrimination concerning claims (1) - (4) and (6) - (32).

Because we affirm the AJ's finding of no discrimination concerning claims

(9), (18), (20) and (28) and (32) for the reason stated herein, we find

it unnecessary to address alternative dismissal grounds (i.e. stating

the same claims as those raised in the instant appeal).

The agency's final action implementing the AJ's finding of no

discrimination concerning claims (1) - (4) and (6) - (32) is AFFIRMED.

Claim (5)

Complainant claimed that he was subjected to harassment on the bases of

race and in reprisal for prior protected activity when he was restricted

to sixty-five (65) hours of overtime per pay period by JSO. In her

April 4, 2206 Order, the AJ dismissed claim (5) for stating the same

claim as claim (1) in the instant appeal. After a review of the record,

we find that claim (5) is the same claim raised in the instant appeal.

Therefore, we find that the AJ properly dismissed claim (5) for stating

the same claim.

Accordingly, the AJ's dismissal of claim (5) is AFFIRMED.

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

May 17, 2007

__________________

Date

1 MSC is now known as Military Sealift Fleet Support Command.

2 The record reflects that after complainant was paid off the USNS

Mount Baker ship, there was an inventory of complainant's stateroom.

The record further reflects that nine bottles of wine was discovered in

complainant's room, a violation of the ship's order.

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0120071103

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

14

0120071103

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