01a54184
11-04-2005
Mason B. Brown, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Mason B. Brown v. Department of the Treasury
01A54184
November 4, 2005
.
Mason B. Brown,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A54184
Agency No. TD 04-2136
Hearing No. 110-2004-00340X
DECISION
Complainant initiated an appeal from the agency's final order, dated
April 27, 2005, concerning his equal employment opportunity (EEO)
complaint of unlawful employment discrimination. For the following
reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Tax Examining Technician at
the agency's Wage and Investment Division, Atlanta, Georgia facility,
filed a formal EEO complaint on December 29, 2003, alleging that the
agency discriminated against him on the basis of reprisal for prior EEO
activity when:
Complainant was issued his Bargaining Unit Performance Appraisal and
Recognition Election on July 11, 2003, with an overall rating of "met";
Complainant received a memorandum dated September 12, 2003, the subject
being, "Creating a Disturbance/Workplace Disruption";
Complainant received a memorandum dated September 12, 2003, the subject
being, "tardiness";
Complainant was harassed by his supervisor in his cubicle on August 26,
2003, which caused him chest pain;
Complainant was asked to fill out a document stating he had only taken
two hours to meet with his supervisor, when in fact he had taken four
hours to meet with his supervisor.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a bench
decision, dated April 13, 2005, finding no discrimination.
The AJ concluded that complainant established a prima facie case of
reprisal discrimination because complainant had engaged in prior EEO
activity in 2002, complainant's supervisor was aware of his EEO activity
and complainant alleged that thereafter he was subjected to what he
believed to be adverse employment actions and harassment.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that
complainant's supervisor, having only supervised complainant for three
months when asked to complete complainant's performance appraisal,
simply re-validated complainant's prior performance appraisal, a common
occurrence in such circumstances. The AJ found that, contrary to
complainant's claims, complainant was not harmed by this action (claim
(1)). The AJ further found that neither counseling memorandum (claims
(2) and (3)) were disciplinary, and that the testimony of complainant's
supervisor, together with the evidence of record, established that
the agency acted appropriately to address behavior that complainant's
supervisor found disruptive in the workplace and unprofessional.
Regarding claim (4), the AJ found the testimony of complainant's
supervisor more credible than complainant's testimony with respect to
complainant's recollection of the event. The AJ found the supervisor's
testimony was supported by statements of complainant's co-workers to
the effect that the co-workers, even in adjacent cubicles, did not hear
complainant's supervisor harass him. They did, however, hear complainant
raise his voice and observed that complainant was �bothersome.� Lastly,
the AJ observed that complainant eventually received the four hours
of time that he sought, and therefore was not subjected to an adverse
action with respect to claim (5).
The AJ found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination/retaliation. In reaching this conclusion,
the AJ found that at the hearing, complainant's testimony presented
credibility issues concerning complainant's claims that he was the
victim of a conspiracy among management officials who worked together
in an attempt to persuade complainant to withdraw his civil actions
and complaints against the agency. Accordingly, the AJ found that no
reprisal discrimination occurred.
The agency's final order implemented the AJ's decision.
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.
After a very careful review of the record, the Commission finds that
the AJ's findings of fact are supported by substantial evidence in
the record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We note that complainant failed to present evidence that any of the
agency's actions were in retaliation for complainant's prior EEO activity.
We find, as did the AJ, no nexus between complainant's prior EEO activity
and the incidents described in complainant's complaint, as amended.
We discern no basis to disturb the AJ's decision.
Accordingly, we AFFIRM the agency's final order finding no discrimination.
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
November 4, 2005
__________________
Date