01a43406
07-20-2005
J. Mica Parenti, Complainant, v. Michael Griffin, Acting Administrator, National Aeronautics and Space Administration, Agency.
J. Mica Parenti v. NASA
01A43406
7/20/2005
.
J. Mica Parenti,
Complainant,
v.
Michael Griffin,
Acting Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 01A43406
Agency No. NCN-02-KSC-A050
Hearing No. 150-2003-09302X
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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
Complainant, a Materials Engineer at the agency's Kennedy Space
Center facility, filed a formal EEO complaint, claimed that the agency
discriminated against him on the bases of disability (neck injury and
stroke)<1> and in reprisal for prior EEO activity.
By letter to complainant dated October 18, 2002, the agency accepted
the following claims for investigation:
(1) on July 3, 2002, [complainant was] issued a letter of �Minimally
Acceptable Level of Performance,�
on July 15, 2002, [complainant was] suspended for five calendar days.
However, the agency dismissed the following claim:
(3) on August 29, 2002, [complainant] received a letter of proposed
removal.
The agency dismissed claim (3) pursuant to 29 C.F.R. � 1614.107(a)(5).
Specifically, the agency stated �[s]ince you are still employed...and
have not been terminated, you have not been aggrieved and, therefore,
have failed to state a claim.�
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On January 30, 2004, the AJ issued a decision without a
hearing, finding no discrimination.
The AJ found that complainant failed to establish by a preponderance
of the evidence that he was discriminated or retaliated against.
Specifically, the AJ adopted the agency's motion for summary judgment
in its entirety.
The record contains a copy of the Agency's Motion for Findings and
Conclusions Without a Hearing (Agency's Motion). Therein, the agency
stated that a memorandum advising complainant that his performance was
at a minimally acceptable level does not amount to an adverse action.
Regarding complainant's suspension, the agency stated that complainant
failed to establish that the agency's proffered reasons for the suspension
were pretext for discrimination and/or retaliation.
The agency's final order dated March 17, 2004, implemented the AJ's
decision.
On appeal, complainant asserts that the AJ improperly issued a decision
without a hearing.
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.
Claim (3)-Proposed Removal
The record reflects that the agency, subsequent to its Notice of Proposed
removal, removed complainant from his position. The record contains a
copy of a memorandum from an agency official (A1) dated December 5, 2002.
Therein, A1 states that complainant will be removed from his position
effective January 3, 2003. The Commission notes that when a complaint
is filed on a proposed action and the agency subsequently proceeds with
the action, the action is considered to have merged with the proposal.
See Siegel v. Department of Veterans Affairs, EEOC Request No. 05960568
(October 9 , 1997); Charles v. Department of the Treasury, EEOC Request
No. 05910190 (February 25, 1991).
Given this circumstance, we find that claim (3) is more properly analyzed
in terms of whether complainant elected to pursue this matter through
the Merit Systems Protection Board (MSPB). EEOC Regulation 29 C.F.R. �
1614.107(a)(4) provides that the agency shall dismiss a complaint when
the complainant has raised the same matter in an appeal to the MSPB.
In Parenti v. National Aeronautics and Space Administration, EEOC
Petition No. 03A40133 (October 15, 2004), the Commission concurred
with the MSPB's decision, finding no discrimination with respect to
complainant's removal. The Commission noted that complainant filed a
mixed case appeal with the MSPB regarding his removal on January 13, 2003.
Thus, we find that complainant elected to pursue his removal claim with
the MSPB. Accordingly, claim (3) is dismissed, pursuant to 29 C.F.R. �
1614.107(a)(4).
Claim (1)-Minimally Acceptable Level of Performance
The record contains a copy of the Minimally Acceptable Level of
Performance memorandum dated July 3, 2002, from the Acting Chief,
Test and Analysis Branch (C1) . Therein, C1 states that complainant's
performance is at a minimally acceptable level. C1 further states that
complainant's minimally acceptable level of performance is due, in part,
to the amount of laboratory reports that he has completed. The record
also contains a Notice of Proposal to Remove to complainant from C1 dated
August 29, 2002. Therein, C1 states that the proposed removal is based
on complainant's physical inability to perform the essential duties of
his position. In addition, C1 states that complainant is required to
produce reports and that �productivity expectations are contraindicated by
[complainant's] stated medical restrictions.� As discussed above, the
MSPB issued a decision finding no discrimination regarding complainant's
removal, with which the Commission concurred. Furthermore, the MSPB made
specific reference in its Initial Decision, MSPB No. AT-0752-03-0284-I-1
(September 29, 2003), to complainant's low productivity with respect
to drafting reports. Based on these circumstances, we find that claim
(1) was included in the determination of the MSPB and, consequently,
was pursued in the MSPB forum and that this claim is properly dismissed.
Claim (2)-Suspension
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for
its actions. The record contains a copy of the Notice of Proposed
Suspension<2> dated April 15, 2002, from complainant's supervisor at the
time (S1). Therein, S1 stated that he is proposing to suspend complainant
for insubordination. Specifically, S1 stated that complainant refused a
direct order given by him to attend a meeting. We find that complainant
failed to present sufficient evidence that the agency's articulated
reason for its action was pretext for discrimination and/or retaliation.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. Accordingly, for the reasons stated herein, we AFFIRM the
agency's final order finding no discrimination.
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
7/20/2005
Date
1For purposes of analysis only, we assume, without finding, that
complainant is an individual with a disability.
2The record reflects that the agency notified complainant, via memorandum
dated July 2, 2002, that it was suspending him for five days from July
15, 2002 through July 19, 2002.