Timothy C. Houghtaling, Complainant,v.Tom Ridge, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01A24222 (E.E.O.C. Oct. 27, 2003)

01A24222

10-27-2003

Timothy C. Houghtaling, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.


Timothy C. Houghtaling v. Department of Homeland Security

01A24222

October 27, 2003

.

Timothy C. Houghtaling,

Complainant,

v.

Tom Ridge,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 01A24222

Agency No. I-00-E040

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's final decision in the above-entitled matter.

Complainant alleged that the agency had discriminated against him, in

violation of the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. and Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., on the

bases of age (D.O.B. 7/7/47) and reprisal (prior EEO activity) when he

was not selected for a Special Agent position in Greer, South Carolina.

On appeal, complainant generally restates his previous arguments. In

particular, complainant asserts that the record supports the finding that

his EEO/union activity was the basis for his non-selection. Upon review

of the record, we agree with the FAD and find that the preponderance of

the evidence supports the conclusion that complainant was not selected for

the Special Agent position due to a co-worker's (SSA) perception (which

he communicated to the selecting officials) that complainant had spent

an excessive amount of time working on unauthorized union matters while

detailed at a remote work site. In addition, SSA perceived complainant

to be excessively negative about the agency. Contrary to complainant's

assertions, the record indicates that SSA and the selecting officials

were not disturbed by the nature of complainant's union activity but

rather the affect it had on complainant's work productivity.

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 agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination occurred.

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 27, 2003

__________________

Date