0120060081_r
12-08-2006
Michael St. Cyr, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Michael St. Cyr v. Department of Health and Human Services
0120060081
.
Michael St. Cyr,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120060081<1>
Agency No. IHS-018-04Hearing No. 350-2005-00131X
DECISION
Complainant, a Support Services Supervisor, GS-0342-09, filed a formal EEO
complaint in which he claimed that the agency discriminated against him on
the bases of his sex (male) and national origin (Native American) when:
1. Complainant was suspended from his position of Support Services
Supervisor with the Fort Yuma Service Unit for seven calendar days from
December 1, 2003 to December 8, 2003.
Complainant also claimed that he was discriminated against in reprisal
for his prior EEO activity under Title VII when:
2. On January 29, 2004, complainant's delegation of acquisition
authority was rescinded by the Chief of Acquisition Management Division
and temporarily given back to him on February 5, 2004. Complainant's
acquisition authority was again rescinded on March 26, 2004.
3. On April 5, 2004, the Chief of Acquisition Management Division
reduced complainant's Impac Credit Card limit by $22,500.00.
The record indicates that complainant was directed by his supervisor to
attend two training courses after complainant was unable to authenticate
his Level 1 certification. The Level 1 certification is not a job
requirement for complainant but it is required for warrant/signature
authority. Level 1 certification requires applicants to successfully
complete two 40 hour courses (Contract Formation I and Acquisition
Planning II - the courses complainant was asked to attend), complete six
months of interim work performing acquisition duties, and apply to the
Certification Board at agency headquarters for Level 1 certification.
Complainant was issued a seven-day suspension for failure to follow
a required supervisory directive that he attend a Contract Formation
training class in Parker, Arizona, commencing the week of August 11, 2003.
The suspension notice stated that complainant had failed to submit a
Level 1 certification that was essential for his acquisition authority.
The suspension notice further stated that had complainant attended
the training course, he would have completed one of the two courses
that he needed to complete in order to apply for Level 1 certification.
The record reveals that complainant's acquisition authority was removed
on January 29, 2004, temporarily restored on February 5, 2004, and
again rescinded on March 26, 2004, after a coworker signed the letter
of acceptance of the acquisition authority. Complainant was previously
delegated acquisition authority in the amount of $25,000 for both purchase
orders as well as the purchase card program. When complainant could
not produce evidence of Level I certification, the warrant/signature
authority for purchase orders was rescinded. However complainant was
allowed to maintain signature authority for the purchase card as long
as the single purchase limit did not exceed $2,500.
The agency accepted the complaint and conducted an investigation.
Thereafter, the complaint was referred to an EEOC Administrative Judge
(AJ) pursuant to complainant's request for a hearing. Without holding a
hearing, the AJ issued a decision finding no discrimination. The AJ found
that complainant failed to establish a prima facie case of discrimination
on the alleged bases. With regard to complainant's claim concerning his
suspension, the AJ found that complainant did not cite comparatives who
were similarly situated individuals. The AJ noted that complainant is
a manager and the three comparatives were not in managerial positions.
The AJ further noted that only one of the comparatives had the same
first-line supervisor as complainant. With respect to the reprisal
claims, the AJ found that complainant did not present evidence that the
Chief of Acquisition Management Division was aware of his EEO activity
and he did not present evidence of a causal connection between the EEO
activity and the subsequent action. The AJ stated that the Chief of
Acquisition Management issued a report prior to complainant's contact
of an EEO Counselor. The AJ further stated that the September 30, 2003
Notice of Proposed Suspension notified complainant that his certification
may be withdrawn due to his failure to attend training. With regard to
the suspension and the reprisal claims, the AJ found that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
The AJ noted that complainant's failure to attend training was a failure
to follow his supervisor's order. The AJ stated that complainant had
continuously failed to produce evidence of his Level 1 certification
that had been requested from him since July 2003. According to the AJ,
complainant failed to present evidence to refute the agency's stated
reason for the suspension and also failed to present a genuine issue
of material fact regarding the agency's stated reasons for reducing the
credit limit and rescinding his acquisition authority. By final action
dated September 9, 2005, the agency implemented the AJ's decision.
On appeal, complainant maintains that attending the Contract Formation
training course was recommended rather than mandatory. Complainant argues
that at no time was he advised by his superiors that his participation in
the two courses was mandatory. Complainant contends that one comparative
was similarly situated as she reported to the same supervisors, was
subjected to the same standards governing performance evaluation and
discipline, and engaged in similar conduct. Complainant states that
this comparative was scheduled to participate in a training course, but
failed to do so and was not suspended or disciplined. Complainant argues
that he was unable to attend the first course (Acquisition Planning II)
due to family obligations and he could not attend the Contract Formation
course because he could not afford it. Complainant claims that had he
used his own money, he would not have been entitled to reimbursement
under agency regulations. Complainant further contends that he was
improperly denied use of his government-issued travel credit card.
Complainant claims that he paid off the balance of $719.27 that had been
cited as the reason for denial of his travel advance.
In response, the agency asserts that complainant was informed that his
attendance at the Contract Formation class was mandatory. The agency
notes that complainant was allowed to utilize annual leave to help
his mother relocate during the period when he would have taken the
Acquisition Planning II course. The agency states that this was
done with the understanding that complainant would participate in the
Contract Formation course starting August 11, 2003. The agency disputes
complainant's position that he could not have received reimbursement for
personal funds that he would have expended during the training course.
The agency states that complainant would have received reimbursement
for travel and lodging costs since he would not have paid for the
training course. The agency further states complainant could have
used a government vehicle and the accompanying government credit card
for gasoline. The agency asserts that none of the comparatives cited by
complainant were similarly situated. The agency states that complainant
is held to a higher standard since he is a supervisor and that the
comparative who reports to the same supervisors as complainant does not
have a job that involves signature/warrant authority. The agency notes
that this comparative was never directed to attend training required
for certification in order for her to carry out a portion of her job.
With regard to the rescinding of complainant's purchasing authority and
the decrease in his IMPAC single purchase limit, the agency states that
complainant was notified on September 30, 2003, in the Notice of Proposed
Suspension, that the Chief of Acquisition Management was threatening
to withdraw his certification as a contracting officer because of his
failure to attend certification training.
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.
With regard to each claim, we shall assume arguendo that complainant
established a prima facie case on each of the alleged bases. The agency
stated with regard to complainant's suspension that it was effected
because he failed to follow his supervisor's directive to attend the
Contract Formation class that commenced on August 11, 2003. As for the
rescinding of complainant's acquisition authority and the reduction
in his single purchase limit, the agency stated that complainant
failed to submit a Level 1 certification that was essential for his
acquisition authority. We find that the agency articulated legitimate,
nondiscriminatory reasons for its actions.
We find that complainant has not established that the agency's stated
reasons were pretext intended to mask discriminatory intent. It is
evident from the record that complainant was given explicit instruction
to attend the Contract Formation class. Agency regulations indicate
that complainant would not have had to bear the costs associated with
lodging and travel costs. The agency stated that although complainant
was not eligible for a government-issued credit card or a travel advance
due to his indebtedness, complainant could have used a government vehicle
and the accompanying government credit card for gasoline. We find that
complainant has not established that the agency's reason for issuing
the suspension was pretext for discrimination against him on the bases
of his national origin or sex.
With regard to complainant's reprisal claims, we find that complainant
has not shown that reprisal was the reason for the elimination of
his acquisition authority and the subsequent reduction in his IMPAC
single purchase limit from $25,000 to $2,500 rather than the legitimate,
nondiscriminatory reason set forth by the agency. Although complainant
claims that the agency lost his Level 1 certification, it nevertheless was
still his responsibility to submit proof that he had qualified for the
certification. Complainant was informed in July 2003, that the agency
had no record of him having Level 1 certification. Complainant was
informed in the Notice of Proposed Suspension dated September 30, 2003,
that his acquisition authority could be rescinded. This was more than
a month before he initiated contact with an EEO Counselor. Thus, it is
clear that a reduction and/or elimination of complainant's acquisition
authority due to his lack of Level 1 certification was being contemplated
by the agency prior to complainant's initiation of the EEO process.
We find insufficient evidence to support complainant's position in claims
(2) and (3) that the agency's actions were based on reprisal.
The agency's decision finding no discrimination is AFFIRMED.
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
December 8, 2006
__________________
Date
1Due to a new data system, your case has been redesignated with
the above referenced appeal number.