0120103735
01-20-2012
John S. Meyers, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
John S. Meyers,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103735
Hearing No. 443-09-00157X
Agency No. 200J-0330-2008104753
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. For the reasons set forth,
we AFFIRM the Agency’s decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was
employed as a Veterans Service Representative (VSR) in the Agency’s
Pension Management Center at the Milwaukee VA Regional Office (VARO).
Report of Investigation (ROI), at 1 and 2. Complainant sought counseling
and subsequently filed a formal complaint.
Complainant alleged that he was subject to discrimination on the basis
of sex (male) when:
1. On August 12, 2008, September 5, 2008, and September 17, 2008,
Complainant’s requests for a transfer to a new authorizer were denied.
Complainant also alleged that he was subjected to discrimination on the
bases of sex (male) and in reprisal for prior EEO activity when:
2. On September 19, 2008, Complainant was terminated from his VSR position
during his probationary period.
At the conclusion of the investigation, Complainant received a copy
of the investigative report. The Agency informed Complainant of
his right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision from the Agency.
Complainant requested a hearing before an AJ.
On July 27, 2010, an AJ issued a decision without a hearing. The AJ
found that there was no genuine issue of material fact in dispute, and
concluded that Complainant had not been discriminated against as alleged.
Specifically, the AJ found that the Agency presented legitimate,
nondiscriminatory reasons for its actions, which Complainant failed
to rebut.
On August 11, 2010, the Agency issued a final order adopting the AJ’s
decision. Thereafter, Complainant filed the instant appeal.
On appeal, Complainant argued, in essence, that he disagreed with the
Agency’s denial of his claims. Complainant’s Appeal, at 1 through 12.
In response to Complainant’s Appeal, the Agency argued that the AJ’s
decision includes a thorough recitation of the relevant facts as well
as a complete analysis of the controlling law. The Agency noted that
Complainant and his representative failed to submit an appeal brief
offering any justifiable evidence to support Complainant’s claim that
he was subjected to discrimination. The Agency stated that Complainant
failed to demonstrate any reason for reversing the AJ’s decision
granting summary judgment in favor of the Agency. In conclusion, the
Agency requested that the Commission affirm the Agency’s final decision.
Agency’s Response to Complainant’s Appeal, at 1- 4.
ANALYSIS AND FINDINGS
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, we find that the issuance of summary judgment was appropriate
as there are no genuine issues of material fact. Regarding claim 1,
the Supervisory Veterans Service Representative (Supervisor) explained to
Complainant that reorganization of all the teams would begin on October
1, 2008. The Supervisor told Complainant that he should inquire to the
permanent Coach about getting a different authorizer. The Supervisor
said that he discussed with Complainant that the authorizer makes the
decision on the rightness or wrongness of the cases based on the laws
and regulations. The Supervisor argued that he told Complainant that
a case was either right or wrong, but asked him to provide specific
examples showing that his authorizer was being hard; he did not do so.
The Supervisor asserted that the case sheets submitted by his authorizer
showed correct and incorrect cases, and he saw no evidence that the
authorizer was being hard on Complainant. The Supervisor claimed that he
felt the permanent coach, the Manager of the Pension Management Center
(Manager), should make the decision on assignments. The Supervisor
denied that Complainant’s sex was a reason for the denial of his
requests for a transfer. ROI, at Affidavit B3.
The Manager stated that he had no knowledge of Complainant’s request
for a transfer to another authorizer, having been detailed outside
of the division at the times Complainant said he made the requests.
ROI, at Affidavit B-4.
With respect to claim 2, the Supervisor stated that he issued the
termination to Complainant, but the Director of the Milwaukee VARO
(Director) was the deciding official. The Supervisor said that he
prepared two monthly review sheets and the employee folder for upper
management review. The Supervisor asserted that Complainant was
terminated for unsatisfactory performance, not because of his sex or
prior EEO activity. ROI, at Affidavit B-3.
The Director stated that Complainant was terminated for unsatisfactory
performance. The Director denied that Complainant’s sex or reprisal
were reasons for the termination. ROI, at Affidavit B-5.
In the Notice of Termination of Career Intern Appointment dated September
19, 2008, the Director stated that Complainant achieved 5.80 averaged
weighted actions per day and an accuracy rate of 78.58% in July 2008.
The Director asserted that Complainant achieved 5.71 averaged weighted
actions per day and an accuracy rate of 23% in August 2008. ROI, at�
�Records and Documents C-3.
The Agency said that Complainant’s 3 month production average was
the third lowest in his training group. Complainant, employee A,
and employee B achieved the lowest 3 month production averages. As a
result, Complainant and employee B were terminated on September 19, 2008.
The Agency asserted that employee A would have been terminated as well,
but employee A resigned. The Agency argued that each employee retained by
the Agency achieved a production average which exceeded Complainant’s
production average. Agency’s Response to Complainant’s Appeal,
at 2-3.
The Commission finds that Complainant failed to rebut the Agency's
articulated legitimate, nondiscriminatory reasons for its actions.
Additionally, the Commission finds that Complainant has failed to show, by
a preponderance of the evidence, that he was subjected to discrimination
on the basis of sex with respect to the requests for transfer claim.
Moreover, Complainant failed to show, by a preponderance of the evidence,
that he was discriminated against on the bases of sex or reprisal with
respect to the termination claim.
CONCLUSION
The Agency’s decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 20, 2012
__________________
Date
2
0120103735
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103735