0120081690
05-07-2008
Bradley B. Smith, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Bradley B. Smith,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120081690
Agency No. ARRIA05AUG11096
Hearing No. 440-2007-00022X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 18, 2008 final action concerning his equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On February 22, 2005, complainant was hired as a Trades Worker, WG-5, at the agency's Rock Island Arsenal (RIA), Joint Manufacturing Technology Center (JMTC) in Rockville, Illinois, for a term of thirty days. On March 21, 2005, the agency extended complainant's temporary employment to April 22, 2005, and later further extended his employment for one year. During the period at issue, the agency changed complainant's title from "Trades Worker" to "Painting Worker, WG-5" on May 1, 2005, and again extended his employment for another year to May 29, 2006.
On August 4, 2005 complainant initiated EEO counselor contact, and subsequently filed the instant formal complaint on November 14, 2005. Therein, complainant claimed that he was discriminated against on the bases of race (African-American), color (black), disability1 (hearing), age (40), and in reprisal for prior protected activity when:
1. in July 2005, complainant was not selected for the position of Painting Worker, WG-4102-7, advertised under Vacancy Announcement Nos. NCBG05574773 and NCBG05574773D;
2. between July 15, 2005 and August 23, 2005, complainant was subjected to a hostile work environment;
3. on August 3, 2005, complainant was issued a formal counseling and warning for poor work performance; and
4. on August 15, 2005, complainant was issued a Notice of Termination effective August 17, 2005.2
On December 31, 2007, an EEOC Administrative Judge (AJ) issued a decision without a hearing finding no discrimination on all four claims. With regard to claim (1), the non-selections, the AJ found the agency articulated legitimate reasons for its decisions, which complainant did not prove were a pretext for discrimination. Specifically, the AJ noted that the selecting official believed complainant had provided false information in his resume, and was also able to justify why the selectees were considered better qualified for the position. With regard to complainant's harassment claim (claim 2), the AJ concluded that the alleged harassing conduct, even if proven to be true and considered together, was not sufficiently egregious or pervasive to have unreasonably interfered with complainant's work performance and/or created an intimidating, hostile or offensive work environment. With regard to claim 3, concerning the counseling and warning, the AJ determined that complainant did not establish a prima facie case of discrimination because he did not identify a similarly situated employee outside his protected classes who was treated more favorably under similar circumstances. Finally, with regard to the termination claim (claim 4), the AJ found, that while complainant established at least a prima facie inference of reprisal, management articulated legitimate, nondiscriminatory reasons for the action, which complainant failed to show was a pretext. Specifically, the AJ found that according to complainant's first-level supervisor (S1), complainant's term employment was terminated for not showing up to work from August 4, 2005 to August 15, 2005, after taking leave on August 3, 2005. The AJ further found that S1 stated that complainant never contacted him for authorization to use leave during the relevant time. SO stated that he was advised by personnel office that "if an employee doesn't show up for work, we have to terminate them."
On January 18, 2008, the agency issued a final action implementing the AJ's decision finding no discrimination.
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.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final action, because the Administrative Judge'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 (M0408)
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 (S0408)
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 (Z0408)
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 7, 2008
__________________
Date
1 The Commission presumes, for the purposes of analysis only and without so finding, that complainant is an individual with a disability.
2 Complainant's formal complaint was amended twice between November 23, 2005 and July 31, 2006. The agency issued complainant letters dated November 23, 2005 and July 31, 2006, partially accepting/dismissing claims on various procedural grounds (i.e. untimely EEO Counselor contact, failure to state a claim, and claiming dissatisfaction with the processing of a previously filed EEO complaint). On appeal, complainant does not challenge the November 23, 2005 and July 31, 2006 partial dismissals issued by the agency. Therefore, we will not addressed these issues in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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