Robin Dixon, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 30, 2005
01a51816 (E.E.O.C. Mar. 30, 2005)

01a51816

03-30-2005

Robin Dixon, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Robin Dixon v. Department of Veterans Affairs

01A51816

March 30, 2005

.

Robin Dixon,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A51816

Agency No. 200N-0640-2004101297

Hearing No. 370-2004-00465X

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 Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission affirms the agency's final order.

The record reveals that complainant, an Item Manager at the agency's

facility in Palo Alto, California, filed a formal EEO complaint on March

2, 2004, alleging that the agency discriminated against him on the basis

of reprisal for his prior EEO activity (December 9, 2002) when he was

suspended, effective February 15-21, 2004, for an unauthorized absence

and disrespectful conduct.

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 concluded that after viewing the evidence in a light most favorable

to complainant, a decision without a hearing was appropriate as there

were no genuine issues of material fact in dispute. The AJ found

that complainant failed to establish a prima facie case of reprisal

discrimination, as complainant's prior EEO activity, which occurred in

December 2002, was too remote in time from the alleged discriminatory

actions at issue to raise an inference of retaliation. The AJ also

found that even assuming, arguendo, complainant established a prima facie

case, the agency nonetheless articulated legitimate, nondiscriminatory

reasons for its actions. Specifically, the AJ found that on November 7,

2003, complainant failed to report to work until 1:30 pm. (Report of

Investigation, B-1). Additionally, the AJ found that when, on November

20, 2003, complainant discovered he had been charged AWOL for the

hours he was out of work on November 7, he had a confrontation with

his supervisor during which complainant called his supervisor a "liar"

and told him that they should "go outside and discuss this like men."

(R.O.I., B-2). The AJ found that management issued complainant the

seven-day suspension as a result of this inappropriate conduct. The AJ

concluded that complainant failed to show that the agency's articulated

reasons are a pretext for unlawful retaliation.

The agency's final order implemented the AJ's decision. On appeal,

complainant contends that the AJ erred in issuing a decision without

a hearing and states that the seven-day suspension he received was a

disciplinary measure incommensurate with the alleged misconduct.

As an initial matter we note that, as this is an appeal from a FAD

issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the

agency's decision is subject to de novo review by the Commission. 29

C.F.R. � 1614.405(a). 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, it is not appropriate for an AJ to issue a decision without

a hearing. In the context of an administrative proceeding, an AJ may

properly issue a decision without a hearing only upon a determination

that the record has been adequately developed for summary disposition.

Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,

2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,

2003).

After a careful review of the record, the Commission finds that a decision

without a hearing was appropriate, as no genuine dispute of material

fact exists. We concur with the AJ's finding that the actions alleged

are too remote in time from complainant's prior EEO activity to create an

inference of discrimination based on reprisal. We also concur with the

AJ's finding that, even viewing the evidence in a light most favorable

to complainant, he has not shown that the agency's articulated reasons

for the seven-day suspension were a pretext for unlawful retaliation.

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

March 30, 2005

__________________

Date