0120072171
08-05-2009
Mark D. Sheffield, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Mark D. Sheffield,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120072171
Agency No. 06-67004-00646
DECISION
Complainant appeals to the Commission from the agency's decision
dated February 21, 2007, finding no discrimination. In his complaint,
dated February 15, 2006, complainant, an Electrical Equipment Repairer,
WG-2854-10, at the agency Marine Corps Logistics Command, Albany, Georgia,
alleged discrimination based on race (Caucasian), national origin (Ohio,
Yankee State), age (over 40), disability (back injury) and in reprisal
for prior EEO activity when:
(1) He was subjected to a hostile work environment by the Industrial
Maintenance Manager and the Head, Electrical Branch, when he was
forced to attend a mandatory meeting on October 13, 2005, without Union
representation to answer questions concerning overtime and was threatened,
coerced, and intimidated by management officials during the same meeting
concerning his request to meet with the Director, Maintenance Center;
and
(2) He was subjected to harassment by the Director, Maintenance
Center, when on October 17, 2005, he called complainant into his office
and questioned complainant about why complainant was attending a meeting
in the conference room with a coworker.
Initially, the record indicates that on April 27, 2006, the agency
previously issued the partial dismissal. Complainant does not contest
that on appeal and we find that for the agency's dismissal of those
claims was proper due to untimely EEO Counselor contact .
After completion of the investigation of the complaint, complainant
requested a final agency decision without a hearing. The agency
then issued its decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which complainant failed to
rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the alleged incidents. With regard to claim (1), the identified
Manager and the Head of the branch stated that the October 13, 2005
meeting was held because complainant previously wanted to talk with
the Director about its mandatory overtime requirement to all employees.
They also indicated that the Director asked them to initially talk with
complainant about his concerns about its overtime policy. During the
meeting, the record reflects that management and complainant had some
verbal confrontation. But, management denied threatening, coercing,
or intimidating complainant as he claimed.
With regard to claim (2), the Director indicated that at the relevant time
period, he was scheduled to have a meeting with the identified coworker,
and not complainant. The Director stated that when he saw complainant in
the meeting, he simply called him into his office privately and asked him
why he was there. The Director stated that when complainant responded
that he was there as a witness, he allowed complainant to attend the
meeting.
After a review of the record, the agency stated and we agree that
complainant failed to show that the alleged harassment was sufficiently
severe or pervasive to affect a term and condition of his employment.
There is no evidence in the record to show that complainant was subjected
to any disciplinary action as a result of the alleged incidents.
The Commission does not address in this decision whether complainant
is a qualified individual with a disability. Furthermore, we note that
complainant has not claimed that he was denied a reasonable accommodation.
Complainant has failed to show that any alleged action, including the
claim of harassment, was motivated by discrimination.
Accordingly, the agency's decision of finding no discrimination with
regard to claims (1) and (2) and dismissing the remaining claims in the
instant complaint 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
8/5/09
__________________
Date
2
0120072171
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013