0120103196
05-25-2012
James K. Hall, Complainant, v. Gary Locke, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
James K. Hall,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 0120103196
Hearing No. 541-2009-00189X
Agency No. 08-54-00170
DECISION
Complainant filed an appeal from the Agency's final order dated June 16, 2010, finding no discrimination with regard to his complaint. For the following reasons, we AFFIRM the Agency's final order.
BACKGROUND
In his complaint, dated July 18, 2008, Complainant alleged discrimination based on age (over 40) and in reprisal for prior EEO activity when he was not timely placed on the Hardship Transfer Candidate List, and as a result, he was denied eligibility to transfer to the El Paso Weather Forecast Office in Santa Teresa, New Mexico, and other vacancies in the area. The record indicates that on August 26, 2008, the Agency previously dismissed the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Upon Complainant's appeal, the Commission, in EEOC Appeal No. 0120083855 (December 31, 2008), reversed the Agency's decision and remanded the case back to the Agency for further processing. Accordingly, the Agency investigated the complaint and Complainant then requested a hearing before an EEOC Administrative Judge (AJ). On June 1, 2010, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency's final order implemented the AJ's decision.
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.
Upon review, we find that grant of summary judgment was appropriate, as no genuine dispute of material fact exists. Moreover, despite Complainant's contentions on appeal, we find the record was fully developed. In this case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. The AJ noted that at the relevant time period at issue, Complainant was employed as a Meteorologist by the Agency's Weather Forecast Office, National Weather Service (NWS), in Pueblo, Colorado. On May 14, 2008, Complainant sent his application to be placed on the Agency's Hardship Transfer Candidate List requesting that he be transferred to the NWS Forecast Office at Santa Teresa, New Mexico. Complainant claimed that the Agency did not timely process his request. The AJ stated that the identified Hardship Transfer Coordinator received the application on May 16, 2008, and forwarded the request to the NWS Employee Organization (EO) President for approval. On June 6, 2008, the Coordinator sent a letter of acknowledgment, also via an electronic message, to Complainant indicating her receipt of his application. The record indicates that in that letter, Complainant was informed that he would be notified of the acceptance/non-acceptance of his application within 30 days of his request. The AJ indicated that the EO President timely notified Complainant of the Agency's acceptance of his hardship transfer request on June 10, 2008, which was within 30 days of the request, in accordance with the Agency's hardship procedure policy. The AJ determined and we agree that the Coordinator's issuance of the acknowledgement letter, which was beyond seven days under the Agency's Hardship Procedure, was harmless since Complainant's request, nevertheless, was accepted within 30 days thereof in a timely manner. Ultimately, Complainant was not given a hardship transfer to Santa Teresa, New Mexico because he applied too late. He was not denied the transfer because of any delay in the sending of the acknowledgment letter.
Furthermore, there is no indication that discrimination was in any way involved the hardship transfer process for any vacancy or that similarly situated persons were treated differently. Based on the foregoing, we find that Complainant has failed to show that the Agency's action was motivated by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.
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
5/25/12
__________________
Date
2
0120103196
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103196