0120083456
01-15-2009
Charles J. Ott, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Charles J. Ott,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120083456
Hearing No. 530-2007-00062X
Agency No. IRS-06-0718-F
DECISION
On August 1, 2008, complainant timely filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from the agency's
July 2, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405(a).
Complainant alleged in his complaint that he was subjected to a hostile
work environment based on his age and reprisal for prior EEO activity
when:
1. he received a proposed 30 day suspension dated November 22, 2005,
2. management hindered his ability to obtain training funds via the Human
Resources Investment Fund (HRIF) from October 3, 2005 through November
23, 2005,
3. on December 5, 2005, he was denied six hours of administrative time
for donating blood,
4. management rejected his request on or about October 5, 2005, to attend
LexisNexis accurint database training,
5. for the dates of December 5, 2005, December 6, 2005, and January 5,
2006, the agency revised his time reports to indicate he did not work
one hour each day, as claimed,
6. on December 9, 2006, his supervisor threatened to suspend him for
not reading his e-mails,
7. management delayed his request to review his personnel binder on
November 23, 2005, and
8. in December 2005 and January 2006, management questioned him regarding
five hours of indirect time that was posted on his time sheet.
Following an agency investigation and EEOC hearing, an EEOC Administrative
Judge (AJ) issued a decision finding no discrimination. The AJ found that
complainant's second line supervisor reacted to evidence supporting the
suspension by attending courses on agency time and receiving payment of a
travel voucher in violation of HRIF rules, until he learned complainant's
former immediate supervisor erroneously approved of it in the manner
requested by complainant. The proposed suspension was promptly rescinded.
The decision found that for most of issues 2 through 8, things did not
occur as alleged. It found that complainant received the HRIF funds,
complainant got the appropriate amount of leave to give blood, received
the accurint training, management was within its normal prerogative
when it denied the time and complainant got the time back, he reviewed
his employee personnel folder within a reasonable amount of time from
his request, and management was within its normal prerogative when it
questioned him about his time. To this we add that the record shows
that while complainant's supervisor initially questioned complainant's
application for HRIF funds, complainant has not shown the questioning
was in bad faith, and the supervisor promptly approved the application,
albeit without his signature, which he cured.
On appeal, complainant argues that his supervisor was aware of his
EEO activity earlier than claimed, that the agency was aware he was
attending the classes on government time with approved travel, that the
AJ should have consolidated his EEO complaints, and erroneously ruled on
his discovery motion to compel. In opposition to complainant's appeal,
the agency argues that complainant's arguments are generalized and merely
disagree with the AJ's decision.
After a close review of the record, we find that the AJ's decision finding
no discrimination is supported by substantial evidence. This would be
the case even if complainant's supervisor was aware of the EEO activity
earlier than claimed. Further, the AJ's finding that the second level
supervisor reacted to evidence in proposing and rescinding the suspension,
and acted without discrimination, is supported by substantial evidence.
The AJ's decision not to consolidate complaints was within the AJ's
discretion, and complainant's argument about the AJ's ruling on his
motion to compel is unspecified, and hence unpersuasive.
The agency's final order is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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
with the
Court 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
January 15, 2009
__________________
Date
2
0120083456
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
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