Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.Download PDFEqual Employment Opportunity CommissionApr 18, 20140120131199 (E.E.O.C. Apr. 18, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 0120131199 Hearing No. 570-2011-00055X Agency No. HS-08-00121-FEMA DECISION Complainant filed an appeal from the Agency’s final order dated January 4, 2013, finding no discrimination with regard to his complaint. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND In his complaint, dated December 11, 2007, Complainant alleged discrimination based on sex (male), age (over 40), and in reprisal for prior EEO activity when on June 25, 2007, he was terminated from his position in the Comptroller Cadre after he was accused of manipulating his government travel voucher.1 Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On December 14, 2012, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. 1 We note that the Agency previously issued a final decision on May 15, 2008, dismissing the complaint due to untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Complainant appealed and the Commission, in EEOC Appeal No. 0120082972 (March 18, 2010) reversed the Agency’s decision and remanded the case back to the Agency for further processing. 0120131199 2 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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the termination. During the relevant time period at issue, Complainant was a Comptroller Disaster Assistant Employee, Level 3, deployed to a disaster in Des Moines, Iowa. Complainant performed duties of financial oversight during the deployment. Complainant’s manager indicated that she terminated Complainant on June 25, 2007, due to his conduct unbecoming a federal employee when he submitted a false cost comparison related to travel to and from Des Moines to attend the Advanced Comptroller Training Course in Maryland, which took place in April 2 – 6, 2007. The manager also noted that Complainant also requested excessive 32 hours of travel time and excessive mileage. After a review of the record, we find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reason for terminating him. Furthermore, we find that Complainant failed to show that he was treated less favorably than a similarly situated employee under similar circumstances. Even if the Agency was mistaken in its belief that Complainant submitted a false cost comparison, there is no evidence that such a mistaken belief was motivated by discrimination. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 0120131199 3 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 0120131199 4 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 Date April 18, 2014 Copy with citationCopy as parenthetical citation