01A04140
08-12-2002
Harry Batton, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Harry Batton v. Department of the Army
01A04140
August 12, 2002
.
Harry Batton,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A04140
Agency No. BODNFO9701H0020
Hearing No. 140-98-8227X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., on the bases of age (54), disability (anxiety
and depression), religion (Free Will Baptist) and reprisal (prior EEO
activity), when: (1) on August 28, 1996, a management official went
through his personal property and placed them in boxes; (2) on January
25, 1996, management requested additional duties to be detailed to him;
(3) on February 13, 1996, complainant spoke to management concerning
the additional duties, training and restudy of his current position for
promotional opportunities; (4) on February 13, 1996 he was harassed
by management about closing the U-Do-It Center on Fridays (training
holidays) and certain employees being off on Mondays; (5) he received
eleven consecutive exceptional performance appraisals and failed to
receive any awards; (6) during June, July and August, 1996, management
continuously harassed complainant's wife about receiving his personal
items from his workplace; (7) in February 1996, management was supposed
to respond to and fill out the CA-2 form regarding worker's compensation.
However, management ignored the responsibility and chose to assassinate
complainant's character; (8) on May 30, 1996, management alleged that
some U-Do-It customers made numerous complaints against complainant;
(9) from July 1995 to January 1996, management made a statement about
getting rid of people with handicaps and that they needed people who could
perform the work;<1> (10) from November to December 1994, complainant was
recommended for a quality step increase but the paperwork was destroyed
and management was made aware of the destruction; (11) from November to
December 1994, complainant was recommended for a quality step increase
but it was never given to him; (12) since his retirement on January 3,
1997, the agency has not held a farewell luncheon or retirement ceremony;
(13) on several occasions, the latest being January 1996, management
told complainant that his allegiance was to him first, his family second
and God third; and (14) on several occasions, the latest being February
1996, management referred to complainant as a troublemaker, a �SOB�,
a short timer, a junior as well as other names.
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 final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
August 12, 2002
__________________
Date
1 We note that with respect to this issue, the responsible management
officials (RMO) provided a detailed account of this allegation which
denies complainant's version. Specifically, the RMO explained and the
record supports that he had concerns about promoting an employee to
a position which included driving as an essential job function when
the individual's physician restricted him to no driving. However,
once the driving restriction was lifted, RMO promoted the individual to
the position. We find insufficient evidence in the record to support
complainant's allegation.