0120103311
11-30-2010
Brandon R. Murphy, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Brandon R. Murphy,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120103311
Hearing No. 451-2010-00096X
Agency No. ARCCAD09JUN02475
DECISION
Complainant filed an appeal from the Agency's July 22, 2010 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Production Controller at the Directorate of Production Management, Power Train and Components Production Control Division, Components Production Control Branch, Corpus Christi Army Depot, Corpus Christi, Texas. Complainant entered on duty on July 21, 2008 and at the time of the events described in the complaint, Complainant was serving a one-year probationary period.
Complainant filed an EEO complaint, dated August 12, 2009, alleging that the Agency discriminated against him on the basis of race (African-American), color (black) and sex (male) when:
Complainant was terminated during his probation on June 5, 2009.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Both Complainant and the Agency submitted motions for a decision without a hearing. The AJ assigned to the case determined that the complaint did not warrant a hearing issued a decision without a hearing on July 9, 2010. AJ's Decision Without A Hearing, (AJ Decision) July 9, 2010.
In her decision, the AJ found that none of the material facts remained in dispute for which a hearing would be required. Specifically, the AJ noted that Complainant's supervisor described two altercations in which Complainant was involved that formed the basis of Complainant's termination during probation.
In the first instance, the AJ observed, Complainant and E1 engaged in an argument which ended with another employee intervening. E1 was a permanent employee and after a discussion about the altercation, E1 offered to shake hands with Complainant. Complainant refused to shake hands with E1. AJ Decision at 5.
In a second incident, Complainant confronted another employee, C1 about the use of a scooter. Again, other employees intervened to keep the confrontation from escalating. C1 is a contract employee, not a permanent federal employee. Id. The AJ considered that the Agency viewed this incident as more troubling based on the statement of a witness who indicated that Complainant planned the confrontation with C1 in advance. Id. at 6. Accordingly, the AJ noted, in consultation with the Agency's Human Resource officials, the Agency decided to terminate Complainant's employment during probation. Id. The AJ found Complainant did not present sufficient evidence of any disputed, material facts and found Complainant failed to show that he was discriminated against as alleged. Id. at 6, 7.
The Agency subsequently issued a final order on July 22, 2010, adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In the instant case, we concur with the parties and the AJ, that the material facts were not in dispute and find that the AJ properly entered her decision without a hearing.
We observe that Complainant does not dispute that he was involved in at least two incidents in which an altercation between himself and another worker occurred during Complainant's first year of federal employment. We further find the statements of witnesses, and to some extent, Complainant's account of the actual incidents are consistent. See, e.g., Electronic Mail Message of C1, March 27, 2009, Report of Investigation (ROI) at 71; Recorded Fact Finding Interview of Complainant, ROI at 195 et seq.
We find that Complainant did not identify any similarly situated employees, not in his protected groups, who received preferential treatment. On the contrary, the other workers (E1 and C1) involved in the incidents cited in Complainant's separation documents, were not similarly situated. E1, who was not disciplined after the altercation with Complainant, was not a federal employee serving a probationary period, and C1, the record shows, was a contract employee. Recorded Fact Finding Statement of H1, ROI at 363 et seq. We find that the Agency articulated legitimate, non-discriminatory reasons for its decision to terminate Complainant's employment which Complainant did not show were a pretext for race, color or sex discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's Final Order, finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
November 30, 2010
__________________
Date
2
0120103311
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103311