01a45703r
01-13-2005
Nathaniel Wilson, Complainant, v. Lawrence M. Small, Secretary, Smithsonian Institution Agency.
Nathaniel Wilson v. Smithsonian Institution
01A45703
January 13, 2005
.
Nathaniel Wilson,
Complainant,
v.
Lawrence M. Small,
Secretary,
Smithsonian Institution
Agency.
Appeal No. 01A45703
Agency No. 03-21-090503
Hearing No. 100-2004-00381X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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.<1> The
appeal is accepted for the Commission's de novo review pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final order.
The record reveals that complainant, a Security Manager at the agency's
Office of Protective Services facility, filed a formal EEO complaint on
September 5, 2003, alleging that the agency had discriminated against him
on the bases of race (African-American) and color (Black) when complainant
was excluded from two managers' meetings in May 2003. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
As an initial matter, the AJ found that complainant had failed to state
an actionable claim. Assuming that complainant had done so, the AJ
concluded that complainant established a prima facie case of race and
color discrimination because the similarly situated employees, not in
complainant's protected class, were treated differently than complainant
by being allowed to attend the managers' meetings in May 2003.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that complainant
was excluded from the two managers' meetings in question because he defied
his supervisor's order that he shave off his beard. The AJ found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
In reaching this conclusion, the AJ found that complainant did not submit
a response to the agency's motion for a decision without a hearing.
Furthermore, in reviewing complainant's affidavit, the AJ found that
although complainant disagreed with the supervisor's policy regarding
beards, complainant did not dispute that his failure to comply with the
policy was the reason for his exclusion from the two meetings.<2>
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
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
only appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exist
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, the issuance of
a decision without a hearing is not appropriate. In the context of an
administrative proceeding, an AJ may properly consider issuing a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that grant
of a decision without a hearing was appropriate, as no genuine dispute
of material fact exists. Complainant did not dispute that he refused
to shave his beard and that that was the reason he was excluded from
meetings.<3> Complainant neither proffered nor identified evidence
indicative of pretext, therefore, the Commission for reasons set for
above, AFFIRMS the agency's final order.
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:
______________________________ January 13, 2005
Carlton M. Hadden, Director Date
Office of Federal Operations
1Complainant received the agency's
final order on June 18, 2004. In order for his appeal to be timely
it would have to be filed with the Commission no later than July 19,
2004. Complainant did not file his appeal until September 2, 2004,
some forty-five (45) days late. However, a review of the final agency
order reveals that the agency did not properly advise complainant that
he had thirty (30) calendar days after receipt of its final decision to
file his appeal with the Commission. The agency advised complainant how
to file an appeal under 29 C.F.R. � 1614.403, and the time for appeal
to the Commission if he was represented by an attorney under 29 C.F.R. �
1614.402(b). However, the agency did not properly advise complainant of
his time for filing an appeal if he is unrepresented (as in this case)
under 29 C.F.R. � 1614.402(a). 29 C.F.R. � 1614.402(a) provides that
appeals must be filed within thirty (30) days of receipt of the dismissal,
final action or decision. Because the agency did not properly advise
complainant of the time required for appealing its final decision and
there is no evidence that complainant rested on his rights, the Commission
finds that complainant's appeal was initiated in a timely fashion.
2 The AJ further noted that when complainant obtained a medical release,
he was permitted to attend managers' meetings without having to shave.
3 Because the Commission decides this case on the merits claim, we will
not address whether complainant has stated a claim.