0120081322
05-13-2008
Joseph A. Soto, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Joseph A. Soto,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120081322
Agency No. 2006-20503-FAA-04
Hearing No. 471-2007-00091X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 20, 2007 final order concerning his
equal employment opportunity (EEO) complaint claiming unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.
During the relevant time, complainant was employed as an Aviation Safety
Inspector at the agency's Detroit Flight Standards District Office in
Belleville, Michigan.
On October 20, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against him
on the bases of national origin (Hispanic) and in reprisal for prior
EEO activity when:
on April 3 and 17, 3006, he was issued Bills of Collections in the
amounts of $459.17 and $2,638.90, respectively.
The record reflects that on April 3, 2006, the Department of Interior
(DOI) issued complainant a bill for collection in the amount of $459.17
for Federal salary payments received in excess of the amount to which
he was entitled.1 The record further reflects that the indebtedness
related to holiday pay overpayments for pay periods 2005-20 (Labor Day
holiday) and 2005-22 (Columbus Day holiday) when complainant was in a
Leave Without Pay (LWOP) status. The record reflects that on April 17,
2006, complainant was issued a second bill of collection in the amount
of $2,638.90 for overpayment. Complainant requested LWOP, after having
been paid for a full pay period in 2005-19. The record reflects that
according to the agency, complainant cannot change his time from paid
time to LWOP after he had already been paid, and not expect to return the
payment he received for the paid leave which resulted in an overpayment.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). On December 18, 2007, the
AJ issued a decision without a hearing, finding no discrimination.
The AJ found that, after viewing the evidence in a light most favorable
to complainant, a decision without a hearing was appropriate as there
were no genuine issues of material fact in dispute. Therein, the AJ
determined that complainant did not establish a prima facie case of
national origin discrimination because he failed to identify a similarly
situated employee outside his protected class who was treated more
favorably under similar circumstances. Regarding the basis of reprisal,
the AJ found that complainant failed to establish a prima facie case of
reprisal discrimination because he failed to show a causal connection
between his prior protected activity and the actions at issue.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of a 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.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge'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 (M0408)
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 (S0408)
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 (Z0408)
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
May 13, 2008
__________________
Date
1 DOI is responsible for processing Federal Aviation Administration's
payroll.
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0120081322
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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