Larry Hall, Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJun 7, 2010
0120091463 (E.E.O.C. Jun. 7, 2010)

0120091463

06-07-2010

Larry Hall, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.


Larry Hall,

Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120091463

Hearing No. 410-2008-00288X-PD

Agency No. 07-64004-02426

DECISION

Complainant filed an appeal from an agency's final action dated January

8, 2009, finding no discrimination with regard to his complaint. In his

complaint, dated October 9, 2007, complainant, a Painter, WG-4102-09, in

the Maintenance Center at the Marine Corps Logistics Command (Activity),

alleged discriminated against based on race (African-American), disability

(injured right shoulder), and in reprisal for prior EEO activity when

she was subjected to a hostile work environment in that:

(1) On April 30, 2007, his supervisor watched him as if he was in

a prison lock up;

(2) On May 9, 2 007, his supervisors stopped giving him work details

and stopped communicating with him;

(3) On May 14, 2007, he was confronted about the way he was performing

his duties and told that if he got hurt again, it would be his fault;

(4) On May 29, 2007, he was confronted about not clocking in;

(5) On July 29, 2007, he was confronted about a porn book, which

was discovered in the Rubber Coating area; and,

(6) On July 26, 2007, his supervisor refused to accept his doctor's

excuse and requested that he return to his doctor to obtain another

excuse.

The record indicates that at the conclusion of the investigation,

complainant requested a hearing before an EEOC Administrative Judge

(AJ). On November 25, 2008, the AJ, after a hearing, issued a decision

finding no discrimination, which was implemented by the agency in its

final action.

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.

An AJ's credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

In this case, the AJ determined that, assuming arguendo that complainant

had established a prima facie case of discrimination, the agency

articulated legitimate, nondiscriminatory reasons for the alleged actions.

The AJ noted that complainant previously injured his right shoulder on

the job and had surgery in March 2007. Complainant returned to duty in

a limited status on April 30, 2007.

With regard to claim (1), complainant's supervisor denied the alleged

incident. Rather he stated that he was watching the whole shop since

he had just been assigned as the new supervisor and needed lo determine

what needed to be done to increase productivity and morale in the shop.

With regard to claim (2), the supervisor, denying the alleged incidents,

indicated that complainant was given "lean" assignment, i.e., sweeping,

dusting, painting floor stripes, and straightening up the shop, because

he was on light duty within his restrictions. The supervisor also stated

that since these duties were complainant's daily duties, he did not need

to tell him everyday to do the same duties.

With regard to claim (3), the AJ stated that the supervisor purportedly

raised his voice to complainant because he was concerned that complainant

was performing duties outside his limitations. The supervisor, denying

the claim, indicated that at the relevant time, he caught complainant

doing production work which he did not assign to complainant to do,

and he told complainant that he was doing work that was not within his

limitations. He, then, told complainant that he needed to go back and

do the assigned work which was within his limitations. Complainant does

not dispute this.

With regard to claim (4), the supervisor stated that since complainant

was late for work on the relevant time period, he asked complainant when

he got to work and had him fill out a leave slip for that time period.

The AJ noted that the next day after this incident, the agency extended

complainant's 4-year term appointment not to exceed May of 2009.

With regard to claim (5), the supervisor admitted that he did confront

complainant about the book because he was informed that the book

had been found in the area where complainant had been that night.

The supervisor stated that he asked complainant and also the other

employee if they knew anything about the book and they both replied they

did not. The supervisor indicated that he never accused complainant

of having the book and he never did find out the owner of the book.

The supervisor further indicated that at the next meeting with his

employees, including complainant, he addressed the subject matter and

that type of magazine was not appropriate in the workplace.

With regard to claim (6), the supervisor stated that he did not accept

complainant's doctor's note for his absence for July 24, 2007, because it

indicated no reason for the absence. However, the supervisor accepted

the second doctor's note for the same date because it indicated that

complainant was absent due to his health reasons.

The AJ stated that complainant failed to show by a preponderance of the

evidence that the agency's proffered reasons were pretextual. The AJ also

determined that the alleged incidents were not pervasive or severe as to

establish a hostile work environment. Upon review, the Commission finds

that the AJ's factual findings of no discriminatory intent are supported

by substantial evidence in the record. It is noted that the Commission

does not address in this decision whether complainant is a qualified

individual with a disability. It is also noted that complainant has not

claimed that he was denied a reasonable accommodation or he was required

to perform his duties beyond his medical limitations.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, the agency's final action is

AFFIRMED because the AJ's decision is supported by substantial evidence.

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

6/7/10

__________________

Date

2

0120091463

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013