Michael C. Smart, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionAug 9, 2007
0120072399 (E.E.O.C. Aug. 9, 2007)

0120072399

08-09-2007

Michael C. Smart, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.


Michael C. Smart,

Complainant,

v.

Michael W. Wynne,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 0120072399

Hearing No. 540-2006-00012X

Agency No. 8Y1M05006

DECISION

On April 19, 2007, complainant filed an appeal from the agency's March

22, 2007, 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 deemed timely and is accepted for the

Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a).

At the time of events giving rise to this complaint, complainant worked

as a Police Officer, GS-0083-05 at the agency's Kirtland Air Force Base

facility in New Mexico. On May 30, 2005, complainant filed an EEO

complaint alleging that he was discriminated against and harassed on

the bases of race (African-American), color (Black), and in reprisal

for prior protected EEO activity arising under Title VII when:

1. Complainant was assigned to a different flight than were other

civilian Police Officers;

2. On February 3, 2005, he was issued a letter, Re: Training

Deficiencies, which included actions that allegedly had nothing to do

with job-related training matters;

3. On February 25, 2005, Management Official-1 (MO-1) allegedly

verbally admonished him for going to the EEO Office while on duty, even

though MO-1 was aware that the complainant had permission to go to the

EEO Office from his first level supervisor;

4. Complainant was allegedly required to provide a second Standard

Form (SF) 86 Security Clearance Application because the SF Form 86 he

previously provided was discarded;

5. MO-2 and MO-3, Supervisory Police Officers, allegedly denied the

complainant access to and the ability to use computers in the Security

Police Office, while on down time and during the course of his normal

work shift;

6. Agency management initiated investigative actions to obtain the

complainant's security clearance, and MO-2 requested the complainant to

sign a SF-86 on July 19, 2005;

7. On August 16, 2005, agency management terminated complainant

during his probationary period as a Kirtland AFB Police Officer,

GS-0083-05.

At the conclusion of the investigation, complainant was provided

with a copy of the report of investigation and notice of his right

to request a hearing before an EEOC Administrative Judge (AJ).

Complainant timely requested a hearing. The AJ assigned to the case

determined sua sponte that the complaint did not warrant a hearing and,

over the complainant's objections, issued a decision without a hearing

on March 5, 2007. The AJ found that complainant had not shown that he

had been discriminated against based on his race, color or in reprisal

for previous EEO activity, and that he had not shown that he had been

subjected to harassment or a hostile work environment based on any of

the above bases. The agency subsequently issued a final order adopting

the AJ's finding that complainant failed to prove that he was subjected

to discrimination as alleged.

After a thorough review of the record, and the arguments submitted by

the parties on appeal, we find that the AJ's decision without a hearing

was appropriate, as no genuine issue of material fact is in dispute.

See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,

2003); Murphy v. Department of the Army, EEOC Appeal No. 01A04099 (July

11, 2003). We further find that the AJ's conclusion that complainant

has not shown that he was discriminated against based on his race, color,

or in reprisal for previous EEO activity, and that he was not subjected

to unlawful harassment, and the agency's implementation of that decision,

was correct, and we AFFIRM the agency's finding of 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

8-9-07

__________________

Date

2

0120072399

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120072399