0120070606
02-08-2007
Fabian Vaksman, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Fabian Vaksman,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120070606
Agency No. 4Y1L05003L071
Hearing No. 551200600026X
DECISION
Complainant filed an appeal from the agency's final action dated November
20, 2006, finding no discrimination with regard to his complaint. In his
complaint, dated June 17, 2005, complainant alleged discrimination based
on disability (attention deficit hyperactivity disorder) when on April 22,
2005, he was terminated during his probationary period. Upon completion
of the investigation of the complaint, complainant requested a hearing
before an EEOC Administrative Judge (AJ). On October 4, 2006, the AJ
issued a decision without holding a hearing, finding no discrimination.
The agency's final action implemented the AJ's decision.
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.
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 stated that assuming arguendo that
complainant had established a prima facie case of discrimination, the
agency has articulated legitimate, nondiscriminatory reasons for the
alleged termination. The agency stated that complainant was hired as a
GS-11 Historian in February 2005, on a probationary basis, contingent upon
him successfully completing the Historian Basic Course at Maxwell AFB,
Alabama with a cumulative grade of 70% or higher. However, complainant
achieved a cumulative score of only 66.4%, thus failing to complete the
requirements of his probationary employment.
The agency also indicated that they received a written complaint from the
Alabama hotel where complainant stayed during the Historian Basic Course
training indicating complainant's behavior during his stay. Specifically,
the hotel manager complained that complainant would come to the lobby for
breakfast wearing nothing but pajama pants and an open shirt and would
scratch himself on the chest while he stood over the food. The manager
also complained that when he checked out, complainant was upset about
an apparent failure to receive a timely wake-up-call and he yelled,
cursed, and threatened the hotel staff on March 19, 2005. The agency
further indicated that on April 7, 2005, after returning to Washington,
complainant was discourteous, belligerent, and argumentative with one
of its Washington employees regarding the shipment of his vehicle.
Based on the foregoing, the Commission finds that the agency articulated
legitimate, nondiscriminatory reasons for the alleged termination.
The Commission also finds that complainant failed to provide any evidence
that the articulated reasons were pretextual or that any agency action
was motivated by discrimination. The Commission does not address in
this decision whether complainant is a qualified individual with a
disability. To the extent that complainant may be alleging that he was
denied a reasonable accommodation, we find that complainant has not
shown that he was denied a reasonable accommodation.
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
February 8, 2007
__________________
Date
1 This is the agency number used by the agency in their appeal brief.
There are other numbers previously associated with this complaint.
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0120070606
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036