Fabian Vaksman, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionFeb 8, 2007
0120070606 (E.E.O.C. Feb. 8, 2007)

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