01A02733
03-08-2002
Michael Krawchuck, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Michael Krawchuck v. Veterans Affairs
01A02733
3/8/02
.
Michael Krawchuck,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02733
Agency No. 97-2174
Hearing No. 120-99-6597X
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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges he was discriminated against on the basis of age (DOB: 4/11/27)
and reprisal (prior EEO activity) when: in October 1996, his locality
pay was changed to the Perry Point, Maryland locality pay and his
travel support via use of government vehicle and payment of tolls was
discontinued. For the following reasons, the Commission AFFIRMS the
agency's final order.<1>
The record reveals that complainant, an Area Manager at the agency's
East Orange, New Jersey facility, filed a formal EEO complaint with the
agency on December 16, 1996, alleging that the agency had discriminated
against him as referenced above. 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 found the following undisputed facts: in October 1995, complainant
was reassigned to the Perry Point, Maryland facility. In response
complainant filed a formal EEO complaint alleging the reassignment
was effectuated because of his age.<2> Following his reassignment,
complainant kept his residence in New Jersey and commuted to his
duty station in Maryland. Initially, complainant commuted by using a
government vehicle from his residence to his duty station, and sought
reimbursement for all highway tolls.
Thereafter, complainant was informed that this arrangement should stop
and the travel support was discontinued. The AJ found complainant was
not disciplined for using a government vehicle for his daily commute,
nor did the agency seek reimbursement for complainant's use of the
vehicle and tolls.
The AJ also found that subsequent to his reassignment, complainant was
kept on the payroll rolls in East Orange, New Jersey. Once the agency was
alerted to this, the funding for complainant's position was transferred
to Perry Point, Maryland. As a result, complainant's locality pay
changed, and represented less pay for complainant. The agency did not
seek reimbursement for the overpayment to complainant. This complaint
followed.
The AJ concluded that complainant failed to establish a prima facie case
of age discrimination or reprisal. Specifically, the AJ found that
complainant failed to demonstrate that similarly situated employees
not in his protected classes were treated differently under similar
circumstances with respect to their travel support and locality pay.
Furthermore, the AJ found complainant failed to establish an inference
of retaliation because he failed to show he suffered an adverse action.
Assuming complainant established his burden of proof, the AJ further
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, which complainant did not establish that more
likely than not, were a pretext to mask unlawful discrimination or
retaliation. In reaching this conclusion, the AJ found the complainant
failed to present any evidence of a discriminatory motive, nor did
he present evidence that would establish the agency's reasons for its
actions were not credible.
On February 11, 2000, the agency issued a final order that implemented
the AJ's decision.
On appeal, complainant contends that the AJ erred when he found there
was no dispute of material facts. He claims the reassignment was made
for discriminatory reasons, and that he believed the agency supplied
him with a government vehicle because of the hardship of his commute.
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, 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.
After a careful review of the record, the Commission finds that granting
summary judgment was appropriate, as no genuine dispute of material fact
exists. We find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Further, construing the evidence to be most favorable to complainant, we
note that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes. 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
3/8/02
Date
1As an initial matter, we note that an associated case (Krawchuck
v. Veterans Affairs, EEOC Appeal No. 01993985 was considered while
deciding the instant case.
2See Krawchuk v. Veterans Affairs, EEOC Appeal No. 01993985.