0120080004
03-10-2008
Mark A. McCloy, Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.
Mark A. McCloy,
Complainant,
v.
Alphonso Jackson,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120080004
Agency No. EEO 06-061
Hearing No. 570-2007-00514X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's August 24, 2007 final order concerning his equal employment opportunity (EEO) complaint alleging 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 period at issue, complainant was employed as an IT Specialist, GS-15/10, at the agency's Headquarters in Washington D.C.
On June 1, 2006, complainant filed the instant formal complaint. Therein, complainant claimed that the agency discriminated against him in reprisal for prior protected activity when:
on March 31, 2006, he was assigned to a project located outside of the Department's Headquarters location. Specifically, complainant claimed that he was involuntarily assigned to work on a project in Reston, Virginia.
On August 17, 2007, an Administrative Judge (AJ) issued a decision without a hearing, finding no discrimination. The AJ found that complainant had not met his burden of proving that the agency's reasons for its actions were a pretext to discriminate against him. The AJ noted that according to complainant's first-line supervisor (S1), agency officials decided that the agency needed to participate in a new initiative entitled "Geospatial One-Stop," along with other federal agencies; and that the agency was required to provide either resources or funding. S1 further stated that the agency elected to provide a technical resource to the initiative and delegated the work assignment to complainant. S1 stated although complainant was involuntarily assigned to work on the project, he never objected to working on it. S1 stated that he assigned the project to complainant because complainant was the best person for the job. The AJ found that complainant failed to present evidence to substantiate his claim that that a genuine dispute of material fact existed regarding the agency's reasons for his reassignment. The AJ noted that complainant claimed that there were two other individuals who were more qualified to work on the project. However, the AJ found that complainant failed to present evidence to substantiate his claim that the individuals' qualifications were the same or superior to his qualifications. Furthermore, the AJ noted that complainant failed to present evidence which creates an inference that he was assigned to the Geospatial One Stop project as a result of his protected activity.
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, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final order, 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.
Finally, the Commission notes that on appeal, complainant raises a new breach claim of a settlement agreement. The breach claim was not previously raised. It is therefore inappropriate for complainant to raise the new claim for the first time as part of the instant appeal.
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
March 10, 2008
__________________
Date
2
0120080004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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