01A15092
04-24-2002
Roman Rodriguez, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Roman Rodriguez v. Department of the Air Force
01A15092
April 24, 2002
.
Roman Rodriguez,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A15092
Agency No. KH0F99260
Hearing No. 360-A0-8333X
DECISION
BACKGROUND
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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted 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, an Inventory Management Specialist at
the agency's Kelly Air Force Base, filed a formal EEO complaint on October
14, 1999, alleging that the agency had discriminated against him on the
bases of national origin (Hispanic), sex (Male), age (D.O.B. 2/21/44),
and reprisal for prior EEO activity when:
from May 24 to September 20, 1998, he was detailed to a lower graded
position;
from May 24 to September 20, 1998, he was allegedly accused by management
of not getting along with a female co-worker;
from May 24 to September 20, 1998, he was allegedly accused by management
of not doing his job;
from April 1, 1998, to March 31, 1999, he did not receive periodic
performance reviews;
from April 1998 to May 22, 1999, management allegedly excluded him from
job-related issues and ignored his suggestions for improved work methods;
from April 1998 to May 22, 1999, management assigned contract personnel
to complainant who were non-productive and unfamiliar with the work;
on an unspecified date he received an inaccurate performance plan; and
on June 9, 1999, he received and annual appraisal rating of excellent
(score of 69) for the period of April 1, 1998 to March 31, 1999.
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.
The AJ concluded that complainant established a prima facie case of
discrimination. The AJ further concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The AJ found
that, with regard to claim one, complainant himself requested the
detail, and he was still paid at his usual grade, despite the lower
grade of the detailed position. With respect to claims two and three,
the AJ determined that the record did not support a finding that such
allegations were made to complainant. Regarding issue four, the AJ stated
that complainant actually amended this issue to state instead that he did
not get his performance appraisal in a timely manner. The AJ found that
this delay was due to the fact that the rating period was not complete
by the time complainant expected to receive his appraisal. As to issues
five, six and seven, the AJ found that complainant was mistaken as to his
impressions and provided no evidence to support a contrary conclusion.
Finally, with respect to issue eight, the AJ found that the rating was
justified. The AJ further found that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination/retaliation.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the AJ erred when she issued a decision without
a hearing, arguing that material facts remain in dispute. Specifically,
complainant alleges that there are inconsistencies in the agency's
reported reasons for taking the actions it took.
ANALYSIS
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, the Commission finds that
grant of summary judgment was appropriate, as no genuine dispute of
material fact exists. Despite complainant's arguments to the contrary,
the record indicates no inconsistencies from the agency. Moreover,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes. We discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 24, 2002
__________________
Date