01a54614
11-04-2005
Gary W. Hinch, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Gary W. Hinch v. Department of Veterans Affairs
01A54614
November 4, 2005
.
Gary W. Hinch,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A54614
Agency No. 2001-0516-2004102992
DECISION
Complainant appeals to the Commission from the agency's June 2, 2005
decision finding no discrimination. According to the agency's decision,
complainant alleges that he was subject to a hostile work environment
on the basis of reprisal for prior EEO activity when:
1. On December 19, 2003, after complainant took samples to be analyzed
by an independent contractor for mold in one of the restrooms, the
Safety and Occupational Health Manager (Responsible Management Official
(RMO) M) and the Director of Safety and Emergency Management (RMO O)
harassed complainant when they told him they were going to get him fired.
On January 13, 2004, RMOs M and O were very angry because complainant
had taken mold samples on his own. RMO M told complainant that he would
put him in jail. RMO O said that he was going to write complainant up
for the same thing.
On February 19, 2004, the Safety and Occupational Health Specialist
(RMO R) wrote a harassing and belittling electronic mail message
with the blessing of RMO O and Supervisory General Engineer (RMO B).
This message was sent to all supervisors, managers and coworkers.
On March 12, 2004, after a fire in the ADC dryer in the laundry, RMOs
M and O harassed complainant about the fire and suspected complainant
of arson.
On April 30, 2004, complainant was again accused of being an arsonist.
A detective (Mr. S), told complainant that RMO M had demanded that
Mr. S change his report of fire to reflect arson and that complainant
had started the fire.
The agency, in its decision, concluded that it asserted a legitimate,
nondiscriminatory reason for its actions, which complainant failed
to rebut. Complainant now appeals from that decision.
We find that the agency has articulated a legitimate, nondiscriminatory
reason for its actions. With respect to claims 1, 2, 4, and 5, the
agency stated that there was no evidence in the record to establish
these events occurred as alleged. Furthermore, the agency reported that
there was no evidence that the named RMOs considered complainant to be
an arson suspect.
In terms of claim 3, the agency said that the evidence establishes that
RMO R sent an electronic mail message on February 24, 2004, indicating
that complainant was out sick the time some clean up work was done and
thanked those who had assisted in the cleanup.
As to the claim of harassment, the agency noted that the alleged
discriminatory harassment consisted of a reference to complainant being
on sick leave while a project was completed. The agency stated that this
event was not inherently egregious or patently offensive. Additionally,
the agency commented that, nevertheless, the alleged events were within
the realm of normal workplace occurrence.
In summary with respect to the allegation of harassment, the agency found
that there was no evidence linking the harassment with complainant's
prior EEO activity. Also, the agency found that complainant failed to
show that the conduct in question consisted of unwelcome personal slurs
or other verbal or physical conduct that was offensive or denigrating.
Moreover, the agency found that the action was not sufficiently severe
or pervasive as to alter complainant's working conditions or created an
objectively hostile work environment.
The Commission finds that complainant has failed to show that
the agency's reasons are pretext for discrimination. Furthermore,
complainant has failed to show, by a preponderance of the evidence,
that he was discriminated against on the basis of reprisal.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 4, 2005
__________________
Date