Raul A. Darauche, Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMar 18, 2005
01a43067 (E.E.O.C. Mar. 18, 2005)

01a43067

03-18-2005

Raul A. Darauche, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.


Raul A. Darauche v. Department of the Treasury

01A43067

March 18, 2005

.

Raul A. Darauche,

Complainant,

v.

John W. Snow,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A43067

Agency No. TD-02-2250

Hearing No. 100-2003-8121X

DECISION

Complainant filed this appeal from a March 1, 2004 agency decision,

implementing the February 25, 2004 decision of the EEOC Administrative

Judge (AJ) finding no discrimination.

In his complaint, complainant alleged that he was discriminated against

on the basis of his disability (chronic depression) when on March 4,

2002, during his probationary period, his employment with the Internal

Revenue Service was terminated.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an AJ.

The AJ issued a decision without a hearing (summary judgment), finding

no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of disability discrimination because he failed to establish that he was

a person with a disability. The AJ noted that complainant had not shown

that he had a mental impairment that substantially limited complainant

in a major life activity. The AJ noted also that complainant failed to

show that he had a record of a disability or was regarded by the agency

as being disabled.

The AJ further concluded that, even if complainant had established a prima

facie case of disability discrimination, the agency had articulated a

legitimate, nondiscriminatory reason for its actions. Specifically,

the AJ found that complainant was terminated for misconduct in the

workplace. The AJ noted complainant's assertions that the underlying

information concerning complainant's misconduct was false but concluded

that complainant failed to demonstrate that the agency's articulated

reason was mere pretext for unlawful discrimination.

The record reveals that complainant was placed under investigation by the

agency as a result of an incident that occurred at work on February 7,

2002, between him and another employee (Person A). The results of the

agency's internal investigation reveals that complainant approached

the desk of Person A, who asked complainant to leave her work area.

The agency's report of its investigation further reveals that complainant

wrote "bitch" on a sheet of paper and showed it to Person A. The record

also reveals that complainant called another co-worker on February 7,

2002, and told the co-worker that he was so mad with Person A that he

would slap Person A if she walked by and that if anyone got in his way,

he would take that person down. The record also reveals that complainant

denied the allegations. The record reveals that complainant admitted that

he went to Person A's desk and removed pictures and dolphin figurines and

that he called Person A on her cellular telephone after the agency had

issued a cease and desist letter from management. The record contains a

termination letter terminating complainant's employment effective March 4,

2002, as a result of inappropriate conduct on February 7, 2002.

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. See 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.

The courts have been clear that summary judgment is not to be used as

a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st

Cir. 1975). The Commission has noted that when a party submits an

affidavit and credibility is at issue, "there is a need for strident

cross-examination and summary judgment on such evidence is improper."

Pedersen v. Department of Justice, EEOC Request No. 05940339 (February

24, 1995).

After a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. We find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Assuming without deciding that complainant established a prima

facie case of disability discrimination, the agency has articulated a

legitimate, non-discriminatory reason for removing complainant, i.e.,

his inappropriate conduct. Further, construing the evidence to be most

favorable to complainant, we note that complainant failed to present

evidence that the agency's action in terminating him was motivated by

discriminatory animus toward complainant's protected class.<1>

The agency's decision finding no discrimination is AFFIRMED.

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 18, 2005

__________________

Date

1We do not decide in this decision whether

complainant is a qualified individual with a disability.