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
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0120071103
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