01A00392_r
08-13-2002
Reginald B. Teamer, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration Agency.
Reginald B. Teamer v. Small Business Administration
01A00392
August 13, 2002
.
Reginald B. Teamer,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration
Agency.
Appeal No. 01A00392
Agency No. 11-94-461
Hearing No. 100-99-7700X
DECISION
Complainant timely initiated an appeal from a final agency order
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. For the following reasons, we AFFIRM
the agency's final order.
The record reveals that during the relevant time, complainant was
employed as a Regional Coordinator Specialist at the agency's Washington,
D.C. facility. Complainant sought EEO counseling and subsequently
filed a formal complaint on November 8, 1994, alleging that he was
discriminated against on the basis of reprisal to prior EEO activity when:
(a) management refused to respond to his requests, dated June 28 through
August 15, 1994, for information regarding the status of job vacancies;
and (b) complainant was harassed during a meeting with the Counselor to
the Administrator on August 17, 1994. Specifically, complainant alleged
that he was called to the office of the Counselor to the Administrator,
who had copies of complainant's previous EEO complaints and electronic
messages regarding the status of vacancies. Complainant claimed that the
Counselor indicated during the meeting that his EEO activity was keeping
him from being selected for promotional opportunities. Complainant also
claimed that the Counselor took exception to complainant's statement in
an electronic message that the Assistant Administrator for Personnel had
characterized complainant as a "chronic complainer" and that he threw
a copy of the electronic message at complainant.
The agency dismissed complainant's complaint, pursuant to 29
C.F.R. �1614.107, on the grounds that it failed to state a claim and/or
was moot. Complainant appealed the matter to the Commission, which
vacated and remanded the matter. Specifically, the Commission found that
the complainant alleged sufficient personal loss to establish that he
was an aggrieved employee. The Commission also found that complainant's
complaint was not rendered moot simply because the Counselor to the
Administrator departed the agency. The Commission found that because
no steps had been taken by the agency to eradicate the alleged harm to
complainant from the incident, and because complainant was asserting
a pattern of reprisal, complainant's claim was not moot. See Teamer
v. Small Business Administration, EEO Request No. 01963524 (August 20,
1997).
The agency investigated the matter on remand, and complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, recommending that the agency issue a finding
of no discrimination. The AJ concluded that the Agency's Motion for
Summary Judgment correctly stated the material facts and that there were
no genuine issues of material fact or credibility requiring resolution
at a hearing. The agency's final action implemented the AJ's decision.
On appeal, complainant raises a number of issues. First, complainant
contends that he was not given the opportunity to present his case to
the AJ due to a number of unfavorable circumstances, including the AJ's
failure to extend discovery (agreed upon by the parties) and the failure
of the agency to provide documents and other information. Second,
complainant contends that he established a prima facie case of reprisal
as he engaged in prior EEO activity, his superiors were aware of that
activity, and complainant is the only member of Executive Potential
Program who has failed to be promoted. Third, although complainant
states he withdrew claim (a) concerning his requests for the status of
job vacancies during discovery, he did not intend to drop the portion
of his complaint regarding the release of his EEO complaints to the
Counselor to the Administrator.
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, 322-23 (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.
After a careful review of the record, we find that there are no genuine
issues of material fact in this case, and that the AJ properly issued
a summary judgment decision finding no discrimination without holding
a hearing.
Accordingly, the agency's final 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
August 13, 2002
__________________
Date