01a55172
01-11-2006
Michael C. Doherty, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Michael C. Doherty v. Small Business Administration
01A55172
January 11, 2006
.
Michael C. Doherty,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A55172
Agency No. 05-04-013
Hearing No. 370-2005-00118X
DECISION
The complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
Complainant alleged that the agency discriminated against him on the
basis of sex (male) when he received a �minimally successful� rating
on his performance evaluation for FY 2003. The record indicates that
complainant, an attorney, worked on the �504 Pilot Project�, located in
the agency's Sacramento office from March 3, 2003 to November 11, 2003.
Unhappy with his working conditions, he transferred to the Fresno office
at his own request in November 2003.
He contacted an EEO counselor on March 25, 2004 regarding incidents
that happened in the Sacramento office which he felt rose to the level
of harassment based on his gender - taking a typing test with the other
members of his division, an incident involving being asked to join in
singing a college �fight� song at a party, receipt of a non-disciplinary
letter of requirements, and finding his work in someone else's office.
In April 2004, complainant received his performance evaluation for
FY 2003 (for work done in Sacramento), and added that claim to his
complaint. The agency dismissed all of the allegations for untimely
EEO counselor contact except for the performance evaluation issue.
The matter was investigated and complainant requested a hearing. After
the appropriate motions and responses, the Administrative Judge (AJ)
issued a summary decision on the performance evaluation issue, finding
no discrimination had occurred. In a footnote in the decision, the AJ
noted that the agency's dismissal of the earlier harassment claim for
untimeliness was appropriate.
On appeal, complainant first argues that the procedural dismissal of his
harassment claim for timeliness was incorrect. Complainant bases his
position on a�continuing violation� theory, asserting he was alleging
an ongoing claim of gender-based discrimination by the same supervisor,
in which the performance evaluation, which he did timely raise with the
EEO counselor, was the most recent example. Complainant next argues
that the AJ's finding of no discrimination with regard to the performance
evaluation is not supported by the evidence of record.
As an initial matter, the Equal Employment Opportunity Commission affirms
the procedural dismissal of the four harassment allegations (taking a
typing test with the other members of his division, an incident involving
being asked to join in singing a college �fight� song at a party,
receipt of a non-disciplinary letter of requirements, and finding his
work in someone else's office), albeit on different grounds from the one
asserted by the agency. Even assuming these allegations had been timely
raised, the Commission finds these incidents fail to state a claim under
the EEOC regulations because complainant failed to show that he suffered
harm or loss with respect to a term, condition or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Moreover, a review of the
record reflects that the matters in question are insufficient to support
a cognizable claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
With regard to the merits of the performance evaluation issue, 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 order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence
does not establish that discrimination occurred. A review of the file
indicates that complainant received his �minimally successful� evaluation
because of job performance problems which are documented in the record,
and he failed to meet his burden of proving that the agency's articulated
reasons for his evaluation were a pretext for gender discrimination.
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
January 11, 2006
__________________
Date