0120072802
09-17-2007
Thomas Sullivan, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, (Administration for Children and Families), Agency.
Thomas Sullivan,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
(Administration for Children and Families),
Agency.
Appeal No. 0120072802
Hearing No. 541-2006-00148X
Agency No. ACF-002-06
DECISION
On June 2, 2007, complainant filed an appeal from the agency's April 30,
2007, final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant worked
as a Regional Administrator, GS-15, for Region VIII of the agency's
Administration for Children and Families (ACF) in Denver, Colorado.
On December 13, 2005, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of age (D.O.B. 07/19/38) and in
reprisal for prior protected EEO activity arising under the ADEA when:
1. Starting on May 24, 2005, he had been the subject of an internal
investigation based on "An Anonymous Hot Line Complaint" which did not
occur;
2. Starting on May 24, 2005, he had been accused of the misuse or abuse
of government travel;
3. Starting on May 24, 2005, he had been subjected to verbal harassment
and a hostile work environment by management which included the submission
of detailed reports on his travel; restriction of management authority
and reluctance to accept his accomplishments;
4. On September 21, 2005, he was ordered to remove 36.75 hours of
compensatory time from his time records; and,
5. On September 22, 2005, he received a Memorandum of Caution.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On March 2, 2007, the agency submitted a motion
for a decision without a hearing. Complainant submitted his objections
to the agency's motion on April 3, 2007. The AJ assigned to the case
granted the agency's motion and issued a decision without a hearing on
April 10, 2007. The agency subsequently issued a final order adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged.
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on
an appeal from an agency's final action shall be based on a de novo
review . . ."); see also EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999). (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,"
and that EEOC "review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
Based on our thorough de novo review of the record, and the arguments
submitted by the parties on appeal, we find that no reasonable fact
finder could find in complainant's favor, as he has not set forth
sufficient facts that would establish that the agency's actions were taken
because of his age, or in reprisal for his opposition to discriminatory
comments or for EEO activity in which he engaged. We conclude that
the issuance of a decision without a hearing was therefore appropriate.
The AJ's ultimate conclusion that complainant has not shown that he
was discriminated against based on his age or in reprisal for prior
protected EEO activity, and the agency's implementation of that decision,
was correct, and we AFFIRM the agency's finding of no 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
9-17-07
__________________
Date
2
0120072802
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072802