0120073271
09-21-2007
John P. Jenkins, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
John P. Jenkins,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073271
Agency No. 200J-0550-2006101714
Hearing No. 440-2007-00078X
DECISION
Complainant filed an appeal from the agency's final action dated June
25, 2007, finding no discrimination with regard to his complaint.
In his complaint, dated April 21, 2006, which was further clarified,
complainant, a Housekeeping Aide, WG-2, at the agency's Danville, VA
Medical Center, alleged discrimination based on sex (male), disability
(cerebral palsy), and in reprisal for prior EEO activity/union activity
when: (1) he was not promoted on March 15, 2006; (2) he was subjected
to sexual harassment on February 1, 2006; and (3) he was subjected to
hostile work environment from early 2002, to August 2005 regarding work
scheduling and assignments.
Initially, the record indicates that on July 14, 2006, the agency
dismissed claims (2) (for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1)) and (3) (for untimely EEO Counselor contact pursuant to
29 C.F.R. � 1614.107(a)(2)). There is no indication that complainant
challenged the dismissal of claims (2) and (3) at the hearing level.
Even if complainant had raised such a challenge, we find that such claims
were properly dismissed by the agency. Complainant was not aggrieved
by the solitary remark (asking complainant if he was sleeping with
a particular individual) in claim (2) and he failed to contact an EEO
Counselor until March 17, 2006, regarding claim (3) which is beyond the
45-day time limit.
The record indicates that upon completion of the investigation of claim
(1), complainant requested a hearing before an EEOC Administrative Judge
(AJ). On June 11, 2007, 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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged nonselection. The AJ noted
that there were two vacant positions at issue and all four applicants,
including complainant, were deemed qualified and eligible for the
positions. A selecting official, considering the applicants' experience,
dependability, and seniority with the agency, selected two candidates
for the positions. The selecting official stated that the selectees
had more seniority and experience than complainant.
The Commission agrees with the AJ that complainant failed to rebut
the agency's legitimate, non-discriminatory reasons for the alleged
nonselection. The Commission does not address in this decision whether
complainant is a qualified individual with a disability.
Accordingly, the agency's final action is AFFIRMED.
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
9/21/2007
__________________
Date
4
0120073271
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036