01a51470
05-06-2005
Johnny R. McAfee, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Johnny R. McAfee v. Department of Agriculture
01A51470
May 6, 2005
.
Johnny R. McAfee,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A51470
Agency No. 030616
Hearing No. 100-20004-00582X
DECISION
The record indicates that complainant filed a timely appeal from an
EEOC Administrative Judge's decision dated November 15, 2004, which
became the agency's final action, pursuant to 29 C.F.R. � 1614.109(i),
concerning his complaint of unlawful employment discrimination.
Complainant, an EEO Specialist, GS-13, filed a formal complaint of
discrimination dated August 25, 2003, alleging that he was subjected to
discrimination on the bases of sex (male) and in reprisal for prior EEO
activity when:
his request for a reassignment was denied on September 25, 2003;
his supervisor counseled him on June 2, 2002 and February 13, 2003,
regarding time and attendance;
his supervisor failed to respond to requests for reassignment beginning
June 14, 2002 through August 25, 2003;
he received an untimely and lower than deserved performance evaluation
dated February 2003;
he was denied a promotion opportunity as a result of the untimely
performance evaluation dated February 2003;
he was denied an opportunity (detail) to serve as the Deputy Director's
Assistant;
he received notification dated February 23, 2003, of non-selection for
the position of Supervisory EEO Specialist, GS-0260-14, advertised under
Vacancy Announcement No. CR-03-02; and
he was counseled on or about June 26, 2003, regarding an electronic mail
message sent to a coworker.
Following the completion of the investigation of his complaint,
complainant requested a hearing on the complaint before an EEOC
Administrative Judge (AJ). The record indicates that the AJ sent the
parties a Notice of Summary Judgment. Based on the parties' response
to that notice, the AJ issued a decision without a hearing finding no
discrimination. The AJ's decision became the agency's final action when
it did not issue its own decision. Complainant raises no new contentions
on appeal.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
Upon review, the Commission finds that the AJ's issuance of a decision
without a hearing was proper in this case since there is no genuine issue
of material fact. The AJ determined that even if complainant established
a prima facie case of discrimination, the agency has articulated
legitimate, non-discriminatory reasons for the alleged actions.
Specifically, with regard to claim (1), the Chief of the Employment
Complaints Division (ECD) stated that he did not have the authority to
grant complainant's particular request for reassignment since it involved
a reassignment outside of ECD, and he was needed in the ECD. The Chief
also stated that only a female employee was granted a reassignment
due to medical reasons. With regard to claim (2), the Chief indicated
that complainant was verbally counseled because he, personally, found
complainant outside of the work place, away from his duty station without
providing the required prior notice in conformity with office policy.
With regard to claim (3), the AJ noted that complainant admitted in his
affidavit that his requests for reassignment were denied, not ignored.
With regard to claim (4), the Chief stated that complainant received
a �fully successful� performance rating because while he had a higher
volume of work, he also had a higher error rate. With regard to claim
(5), the Chief indicated that complainant's evaluation was delayed due
to a system delay and all employees were affected. The Acting Team
Leader of complainant's team stated that throughout her career with
the agency, she never received her rating on time. With regard to
claim (6), the Chief stated that complainant was not selected for the
informal detail position of Acting Special Assistant Director because
of his lack of experience and time with the agency. With regard to
claim (7), the Chief indicated that complainant was not selected for
the position of Supervisory EEO Specialist because he failed to make
the certification list of best qualified applicants established by OPM.
With regard to claim (8), the Chief stated that he counseled complainant
because he sent his electronic mail directly to the Director of Civil
Rights without first advising his supervisor, and because the tone and
language used therein was inappropriate.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the agency's final action is hereby
AFFIRMED because the AJ's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
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
May 6, 2005
__________________
Date