01A34548_r
10-29-2004
Hillery McGowen, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Hillery McGowen v. Department of the Navy
01A34548
October 29, 2004
.
Hillery McGowen,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A34548
Agency No. 00-61331-002
Hearing No. 150-A1-8200X
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. Complainant alleged that he was
subjected to discrimination on the bases of age (date of birth: April 30,
1938) and sex (male) when:
1. On August 26, 1999, complainant received a low personnel demo
performance evaluation for the period October 25, 1998 to September
30, 1999.
2. In January 1999, complainant was removed as a project engineer/project
leader, and a younger engineer was named as project engineer/project
leader for the SEALIFT, ODT, FBI UOTT. IDP&DL, IFFCS, and THFASS projects.
3. On an unspecified date, complainant's branch head created a hostile
environment.
Complainant also alleged that he was subjected to discrimination on
the bases of reprisal for prior EEO activity when his request for
reconsideration of the low performance evaluation was denied and not
responded to in a timely manner.
Following a hearing, an EEOC Administrative Judge (AJ) issued a decision
on May 16, 2003, finding that complainant had not been discriminated
against. Specifically, the AJ found that the agency presented a
legitimate, nondiscriminatory reason for its actions, which complainant
failed to rebut. With regard to complainant's harassment claim, the AJ
also found that there was insufficient evidence to support a claim of
harassment or hostile work environment on any of the bases alleged in
this matter.
On June 30, 2003, 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.
We find that the agency articulated a legitimate, nondiscriminatory reason
for its actions. Regarding the performance evaluation, the Responsible
Management Official (RMO) stated, although complainant was a good engineer
on a technical level, complainant received a level 1 on his performance
evaluation because he had problems with going through the proper chain
of command, problems with attendance, and problems with communication.
Additionally, the RMO said that complainant changed objectives without
consulting management. The RMO stated that complainant had submitted
proposals to sponsors that were at a very low estimated cost and the
agency could not complete the projects for the estimates that complainant
had given. Further, the RMO indicated that complainant tended to focus
on his own views and overlooked those of others. Moreover, complainant
did not use in-house personnel, as was the priority of management,
and continued to use outside contractors.
With respect to complainant's removal as a project engineer/project
leader, the RMO reported that the selectee was brought in as project
leader/manager when a number of projects in Code A-42 were transitioning
from research and development to a more practical implementation phase.
The RMO said that, when she began in Code A-42, complainant was unable
to answer many of the questions concerning contract deliverable dates,
funding, and sponsors. The RMO expressed that complainant tended to be
disorganized and had problems with following the chain of command and
observing management priorities as opposed to his own. The RMO mentioned
that complainant was a strong technical scientist and she felt it would
be in the best interests of the agency to have complainant oversee
the technical aspects of the projects rather than perform the project
management duties associated with that. The RMO commented that the
selectee had been with CSS since 1985 and had years of experience with
implementation of technology into the fleet. As such, the selectee was
brought on as the project manager/leader to oversee not just complainant's
projects, but other projects in Code A-42 as well.
As to the claim of harassment, the AJ found that the incidents complainant
complained of did not rise to the level of severity or pervasiveness so
as to establish a hostile working environment. The alleged harassment
consisted of some yelling at complainant, electronic mail messages
criticizing complainant, and forcing complainant to move from the
trailer. The AJ found that the trailer had been condemned and that was
why complainant's office was moved to the main building. Furthermore,
the AJ found that complainant failed to show that any of the alleged
harassing actions were motivated by complainant's age or sex.
Corresponding to the denial of complainant's request for reconsideration
of the low performance evaluation, the RMO said that complainant was
given the opportunity to go through the reconsideration request process.
The RMO stated that complainant submitted his requests with all his
reasons for why he believed the evaluation should be changed. However,
the agency chose not to change the prior evaluation, maintaining that
it was an accurate reflection of complainant's performance.
Complainant has failed to rebut the agency's legitimate, nondiscriminatory
reasons for its actions. The Commission also agrees with the AJ that
the instant matter is insufficiently severe so as to state a claim
of a hostile work environment. Complainant has failed to show, by a
preponderance of the evidence, that he was discriminated against on the
bases of age, sex, or reprisal.
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 29, 2004
__________________
Date