01a54335
11-10-2005
James K. Neff, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
James K. Neff v. Department of Agriculture
01A54335
November 10, 2005
.
James K. Neff,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A54335
Agency Nos. 030074, 030125
Hearing No. 350-2004-00071X
DECISION
Complainant filed an appeal from an agency's May 13, 2005 notice of final
action concerning his 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. In his complaints, dated
October 22, 2002, and December 19, 2002, complainant, a former Forestry
Technician, GS-462-9, alleged discrimination based on disability (prostate
cancer) and in reprisal for prior EEO activity when: (1) he was placed
in Absence Without Official Leave (AWOL) status between May 15-30, 2002;
and, (2) his annual leave payment was not processed in a timely manner on
or about November 2002. Following the completion of the investigation
of his complaints, complainant requested a hearing on the complaints
before an EEOC Administrative Judge (AJ). On November 17, 2004, 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 grant of summary judgment
was appropriate, as no genuine dispute of material fact exists. The AJ
stated, assuming arguendo that complainant had established a prima facie
case of discrimination, that the agency has articulated legitimate
non-discriminatory reasons for its actions. The record indicates
that by letter dated February 22, 2002, complainant was notified of a
directed reassignment that he would be reassigned from his position as an
Assistant Fire Management Officer on the Safford Ranger District, Coronado
National Forest to the position of Assistant Fire Management Officer on
the Douglas Ranger District, Coronado National Forest, effective May
5, 2002. In that letter, complainant was also informed that he may
accept this directed reassignment or resign and his failure to report
for his reassignment would result in his being placed in an AWOL status.
In his April 17, 2002 letter, complainant declined the reassignment and
informed his supervisor that he had a serious medical condition that
would require surgery which was scheduled on June 4, 2002. On May 1,
2002, the Human Resource Officer requested that complainant provide a
doctor's statement with his prognosis and a return to work date after
surgery by May 14, 2002. Complainant then asked the Officer that the
deadline to submit his doctor's statement be extended to June 10, 2002.
Subsequently, complainant was informed that he would be placed on AWOL
effective May 15, 2002.
With regard to the alleged AWOL, the AJ noted that the agency's District
Ranger indicated that complainant was placed in that status because
he provided an ambiguous note from complainant's doctor saying that
complainant could not return to work. The District Ranger also indicated
that he was not aware of complainant's medical condition, prognosis
for recovery or his expected return to work date. The AJ stated that
the agency's Administrative Officer also indicated that complainant was
using a lot of sick leave during that time due to medical problems and
that the agency policy mandated that an employee provide a doctor's
certification for sick leave taken in excess of 3 consecutive days.
The Administrative Officer further indicated that the alleged AWOL charge
was subsequently changed to sick leave retroactively upon receipt of
a letter from complainant's doctor advising that he was scheduled for
surgery and was not cleared to return to work.
With regard to the accrued annual leave payment, complainant claimed
that although he retired on October 1, 2002, he did not receive the
lump sum payment until mid-December 2002. Complainant claimed that the
agency should have taken action to assure that both his retirement pay
and lump sum payment were processed in a timely manner. The AJ stated
that according to the agency's Human Resource Specialist, there was no
significant delay in the processing of complainant's lump sum payment.
The Human Resource Specialist indicated that there was some delay
resulting from the fact that the Douglas Ranger District was expected
to keep track of costs for complainant's salary and other expenses
and that management had to deal with the funding so that the Douglas
Ranger District would not need to take this money out of their budget.
It took a couple of pay periods to obtain the funds to pay complainant's
lump sum payment.
Based on the foregoing evidence, the AJ determined that the agency
articulated legitimate non-discriminatory explanations for the alleged
AWOL and the delay in paying complainant. After a review of the record,
the AJ also determined that complainant failed to show by a preponderance
of the evidence that the agency's proffered reasons were pretextual.
Accordingly, 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.<1>
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
November 10, 2005
__________________
Date
1The Commission does not address in this
decision whether complainant is a qualified individual with a disability.