Floyd D. Buhrts, Complainant,v.R. L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01A23513_r (E.E.O.C. Oct. 27, 2003)

01A23513_r

10-27-2003

Floyd D. Buhrts, Complainant, v. R. L. Brownlee, Acting Secretary, Department of the Army, Agency.


Floyd D. Buhrts v. Department of the Army

01A23513

October 27, 2003

.

Floyd D. Buhrts,

Complainant,

v.

R. L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A23513

Agency No. BHFRFO9806I0840

Hearing No. 360-80-8505S

DECISION

Complainant filed an appeal with this Commission concerning his

complaint 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. Complainant alleges discrimination on the bases of race

(White)<1>, religion (unknown) and in reprisal for prior EEO activity

when he was subjected to a hostile work environment when:

1. In February 1997, complainant was required to vacuum water while it

was raining outside.

2. In June 1997, complainant was instructed by a previous first level

supervisor (Supervisor A) to remove a bible from his desk.

3. On June 7, 1997, another previous first level supervisor (Supervisor

B) posted complainant's social security number on an official bulletin

board at complainant's duty station.

4. On August 13, 1997, complainant was required by Supervisor A to

work overtime without being paid according to the civilian personnel

guidelines.

5. In 1997, complainant was instructed that he could not go to the

restroom without asking permission from Supervisor A.

6. On October 6, 1998, complainant's coworkers were interviewed by his

current first level supervisor (Supervisor C) with the intent to have the

coworkers make statements about complainant's mental ability and,"to push

[complainant] over the edge."

7. On October 7, 1998, complainant's coworkers were advised by the Chief

of the Academic Support and Quality Assurance, complainant's third level

supervisor, to limit contact with complainant "because complainant was

a Vietnam veteran and a baby killer."

8. On March 3, 1999, complainant attended an award ceremony where other

individual members of his group received awards, but complainant and

another coworker did not.

9. In April 1999, complainant was given less responsibility in his job

because he had been a witness for a coworker in another EEO complaint.

10. On May 20, 1999, Supervisor C sent an electronic mail message to

a union official requesting assistance in obtaining a restraining order

to stop complainant from coming to work.

11. From May 12, 1999 to the present, complainant reported to his

third level supervisor that he was in a hostile work environment, but

she chose to do nothing about it.

12. On May 3, 2000, complainant's EEO activities were raised in a

meeting in front of his coworkers, and a Supervisor of Classroom Support

announced that damage was done to a floor scrubber (complainant was the

last to use the floor scrubber).

Following a hearing, an EEOC Administrative Judge (AJ) issued a

decision on March 25, 2002, finding that complainant had not been

discriminated against. Specifically, the AJ found that the agency

presented legitimate, nondiscriminatory reasons for its actions, which

complainant failed to rebut. The AJ found that the evidence failed to

show that some of the incidents actually occurred and that the evidence

failed to show that any of the incidents were motivated by discrimination.

On May 6, 2002, the agency issued a decision, finding no discrimination.

The agency fully implemented the AJ's decision. Thereafter, complainant

filed the instant appeal.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

The Commission finds that substantial evidence supports the AJ's factual

findings. Complainant has not shown any error in those findings on

appeal. Furthermore, complainant has failed to show by a preponderance

of the evidence that any of the incidents, even if they did all occur,

were motivated by discrimination.

The agency's decision finding no discrimination 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

October 27, 2003

__________________

Date

1The basis of race (White) was added during

the Fact-Finding Conference on December 15, 2000.