01A33840
06-16-2004
Tim J. Hargraves, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Tim J. Hargraves v. Department of the Navy
01A33840
June 16, 2004
.
Tim J. Hargraves,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A33840
Agency No. DON-01-83447-004
Hearing No. 310-A2-5544X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Firefighter, GS-5, at the
agency's Naval Air Station, Joint Reserve Base, Fort Worth, Texas,
filed a formal EEO complaint on June 20, 2001, alleging that the agency
had discriminated against him: (1) based on sex (male) when on March
7, 2001, he was sexually harassed when his immediate supervisor (S1)
exposed his buttocks and made sexual advances at him; and (2) in reprisal
for reporting the incident, when he was placed on Administrative Leave.
Following a hearing, an EEOC Administrative Judge (AJ) issued a decision
on February 27, 2003, finding that complainant failed to establish a
prima facie case of sexual harassment or hostile work environment based
on sex. Regarding complainant's reprisal claim, the AJ found that the
agency presented a legitimate, nondiscriminatory reason for its action,
which complainant failed to rebut. The agency, on June 9, 2003, issued
a decision adopting the AJ's decision. Complainant now appeals from
that 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.
The record reveals that the conduct of S1 was unwelcome.<1>
Complainant also claims he found remarks about him, which he considered
very offensive, on the hard stand wall and on the bathroom mirror.
We conclude that complainant presents insufficient evidence that he was
singled out for S1's conduct or the remarks because of his sex. Finally,
we conclude that the agency articulated legitimate, non-discriminatory
reasons for placing complainant on Administrative Leave (AL). The record
reveals that complainant was placed on AL because his medical evaluation
was not current and the agency was waiting on his medical status with
regard to his return to work as a firefighter. The record also reveals
that complainant was placed back on AL because of irregularities with
his pay, when the computer could not reflect the actual hours worked
by complainant. We conclude that complainant has failed to rebut
the agency's articulated legitimate, nondiscriminatory reasons for
its actions.
Complainant has not established, by a preponderance of the evidence,
that he was discriminated against or subjected to harassment on the bases
of sex or reprisal. We discern no reason to disturb the AJ's decision.
Therefore, 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:
June 16, 2004
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 The record also reveals that immediately after complainant reported
the incident, S1 was placed on Administrative Leave and an investigation
begun. Subsequently, S1 was suspended for two weeks without pay and
was relieved of his supervisory duties over firefighters.