01A12835
03-28-2002
John C. Hamilton, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
John C. Hamilton v. Department of the Navy
01A12835
March 28, 2002
.
John C. Hamilton,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A12835
Agency No. DON 99-61414-002
Hearing No. 120-A0-3494X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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. For the
following reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a Supervisory Detective at the
agency's Naval Amphibious Base in Norfolk, Virginia, filed a formal EEO
complaint on October 13, 1998, alleging that the agency had discriminated
against him on the basis of reprisal for prior EEO activity when he was
ordered to leave the Security Department building on September 17, 1998.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The AJ concluded that complainant failed to
establish a prima facie case of reprisal discrimination. Specifically,
the AJ found that complainant failed to demonstrate that agency officials
were aware of his prior protected activity. Further, the AJ found that
complainant was not an aggrieved individual. The agency's final order
implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when he granted the
agency's motion for summary judgment as material facts remain in dispute.
The agency requests that we affirm its final order.
After a careful review of the record, the Commission finds that the
AJ's grant of summary judgment was appropriate, as no genuine dispute
of material fact exists. Although we note that the AJ did not properly
resolve all factual disputes in favor of the complainant<1> and failed
to properly analyze who is an aggrieved individual under the basis of
reprisal, we find these errors to be harmless.<2> Construing the evidence
to be most favorable to complainant, we find that complainant failed to
present evidence that any of the agency's actions were motivated by a
retaliatory animus.
Therefore, after a careful review of the record, the Commission discerns
no basis to disturb the AJ's decision. Accordingly, we affirm the
agency's final order.
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
March 28, 2002
__________________
Date
1 Specifically, the complainant claims that his supervisor did know
about his prior protected activity, while the supervisor claims to not
have known. Given this dispute, the AJ should have assumed, for purposes
of summary judgment, that the supervisor did know about complainant's
prior protected activity.
2 Regarding complainant's claim of reprisal, the Commission has
stated that adverse actions need not qualify as "ultimate employment
actions" or materially affect the terms and conditions of employment
to constitute retaliation. Lindsey v. United States Postal Serv.,
EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual,
No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses
prohibit any adverse treatment that is based upon a retaliatory motive
and is reasonably likely to deter the charging party or others from
engaging in protected activity. Id.