0120081436
05-29-2008
Phil Hewett, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Phil Hewett,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120081436
Agency No. HS06TSA001424
Hearing No. 480200700111X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 16, 2008 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. Complainant alleged
that the agency discriminated against him on the bases of sex (male)
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when: (1) from October through December 2005,
complainant was harassed; (2) on December 6, 2005, complainant received
an unfavorable performance evaluation; (3) about or during January 2006,
complainant was not selected for either of two supervisory positions; and
(4) on December 27, 2006, complainant was issued a three-day suspension.
On December 5, 2007, and after a hearing in this matter, the
Administrative Judge (AJ) issued a decision finding no discrimination.
In reaching this decision, the Administrative Judge initially found that
complainant had established a prima facie case of sex discrimination
concerning his non-selections. The AJ found, however, that the
evidence clearly proved that the two female employees (selectees) were
better qualified than complainant, while complainant had no supervisory
experience or training. Regarding complainant's performance evaluation,
the AJ found that while two of complainant's female colleagues'
performance was rated higher, complainant "did not show that their
performance was comparable to or worse than complainant's performance,
but that they received higher ratings which would have supported an
inference of sex discrimination." Further, complainant did not proffer
any other evidence to show that he was subjected to sex discrimination
when he was given an unacceptable performance evaluation. Notably,
there was no overall "unacceptable" rating, but complainant received
an unacceptable classification in 10 of 32 evaluation components.
With respect to complainant's suspension, based on testimony proffered
by complainant's supervisor and complainant's prior disciplinary record,
including a Letter of Counseling on August 9, 2005, a Letter of Reprimand
on January 23, 2006, and a Letter of Guidance and Direction on June 7,
2006, all addressing his unprofessional conduct, the AJ determined that
management's decision to place complainant on a three-day suspension was
"not so severe or obviously unreasonable that the level of discipline
itself supports inferring that the act was retaliatory." Concerning
the hostile workplace claim, the AJ found that while the totality of
an harassing statement referencing complainant as a "boy-toy" by two
managers, for approximately a three-month period was inappropriate,
these statements alone do not prove harassment.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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 29, 2008
__________________
Date
2
0120081436
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120081436