01986106
05-30-2001
Lawrence E. Farmer, II, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Lawrence E. Farmer, II v. Department of the Army
01986106
May 30, 2001
.
Lawrence E. Farmer, II,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01986106
Agency No. 9603G0800
Hearing No. 100-98-7105X
DECISION
Lawrence E. Farmer, II (complainant) timely initiated an appeal from a
final agency decision concerning his complaint of 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. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he was
discriminated against on the bases of race (African-American) and sex
(male) and subjected to retaliation for prior EEO activity (complaint of
sexual harassment) when, on April 12, 1996, he resigned his employment
after receiving a proposed termination letter.
For the following reasons, we affirm the agency's final decision.
The record reveals that during the relevant time, Complainant was
employed as a Psychiatric Nursing Assistant at the agency's Landstuhl,
Germany Medical Center. Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a formal
complaint on August 7, 1996. At the conclusion of the investigation,
complainant was provided a copy of the investigative file and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race or sex discrimination, noting that complainant presented
no comparative evidence to show that the Agency treated him more harshly
than a similarly situated female or non-African-American employee who had
been accused of serious misconduct. The AJ concluded that complainant
did establish a prima facie case of retaliation and then concluded
that management officials articulated a legitimate non-discriminatory
reason for proposing complainant's removal. Specifically, the AJ found
that management officials based complainant's proposed removal on an
agency investigation (referred to as a 15-6 investigation) revealing
that complainant had committed conduct unbecoming a federal employee
and had violated written regulations and policies by engaging in sexual
and other misconduct with patients and a co-worker. The AJ concluded
that complainant failed to provide convincing evidence that the agency's
explanation was a pretext for discrimination. The agency's final action
implemented the AJ's decision.
On appeal, complainant raises no new contentions but instead argues, as
he did throughout the investigation, that he did not commit any of the
offenses for which his termination was proposed. He asserts that the
15-6 investigation conducted by agency officials into the accusations
made against him was flawed and that no evidence that he committed any
wrongdoing was ever found. He concludes that the true reason that his
termination was proposed was that he complained that a white, female
co-worker was sexually harassing him and stated that he could no longer
work with her. He argues that if not for his claim of sexual harassment,
management would have treated him more favorably during the investigation
into his alleged misconduct. He concludes that the 15-6 investigation
could not have been the basis for the agency's decision to terminate
him because it was based on �hearsay, conjecture and contradictions.�
The agency requests that we affirm its final action implementing 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. 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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We note that while
complainant established a prima facie case of race and sex discrimination
and retaliation, he failed to raise a genuine issue of material fact in
regard to the agency's explanation for its action.
Agency officials testified that they based their determination that
complainant should be terminated on an investigation which concluded
that complainant engaged in sexual misconduct with a patient, made
inappropriate advances to the wife of another patient, and sexually
harassed a co-worker.<1> Complainant argues that the investigation
was inaccurate and incomplete and that, therefore, agency officials
could not have relied on it in deciding to terminate his employment.
In support of this argument he points to the lack of physical evidence
that he committed rape or other sexual misconduct and the fact that
he was never charged with a criminal offense. We note, however, that
these issues are irrelevant to the question of whether agency's officials
based their decision to terminate complainant on the results of the 15-6
investigation. The agency did not argue that it relied on physical
evidence or that there was sufficient evidence to charge complainant
with a crime. Rather, agency officials stated that the investigation's
findings led them to believe that complainant had committed misconduct
and that even considering complainant's statements to the contrary,
they felt the evidence in the 15-6 report was too strong to place
other patients at risk by continuing to employ complainant. Moreover,
while complainant alleges that the statements of the alleged victims
of his misconduct include contradictions, it is undisputed that before
concluding that complainant committed misconduct, the 15-6 investigator
interviewed fourteen individuals, including complainant, those accusing
him of misconduct, and all relevant witnesses. Even assuming the
truth of complainant's contentions that he did not commit the alleged
offenses and that the 15-6 investigation was based on hearsay and
included contradictions, complainant failed to raise a genuine dispute
as to whether agency officials based their decision to terminate him on
the results of the 15-6 investigation.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission AFFIRMS the
agency's adoption of the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 30, 2001
Date
1 The 15-6 investigation concluded that this sexual harassment was
�mutual�, i.e., complainant was also harassed by the co-worker.