0120073778
11-20-2007
Ronald Brewer, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Ronald Brewer,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120073778
Agency No. 05-DJJNDU-004
Hearing No. 531-2006-00023X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 31, 2007 final order concerning his equal
employment opportunity (EEO) formal complaint claiming 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.
During the period at issue, complainant was employed as a Recreation
Program Manager, GS-1101-12, at the agency's Morale, Welfare and
Recreation, Joint Forces Staff College, a component college of the
National Defense University (NDU) in Norfolk, Virginia.
On May 20, 2005, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against him
in reprisal for prior EEO activity when a Captain purportedly conducted
a fabricated command climate survey, in order to precipitate a command
investigation, which resulted in false accusations against complainant.
Complainant further claimed that as a result of the investigation,
he was detailed to a lower graded position, Recreation Specialist,
GS-188-09 and was threatened with termination.1
On June 18, 2007, an Administrative Judge (AJ) issued a decision without
a hearing, finding no discrimination. The AJ found that complainant did
not establish a prima facie case of reprisal discrimination because he did
not show a nexus or casual connection between his prior protected activity
and the instant matter. The AJ nevertheless found that the agency had
articulated legitimate, nondiscriminatory reasons for its actions.
The AJ found that the findings of the investigation showed a systematic
plan by complainant to convert agency resources, including hotel rooms,
means, drinks, monies, to his benefit and to the benefit of some of
employees whom he supervised. The AJ further noted that a review of
the witnesses' statements showed that complainant engaged in multiple
acts of misconduct and conversion of agency resources; favored and
extended converted benefits to his employees; and that he encouraged
several employees to file EEO complaints in an attempt to thwart agency
reorganization efforts. The AJ noted that complainant was detailed to
a Recreation Specialist GS-09 position pending the investigation but
received full salary at the GS-12 level. Furthermore, the AJ determined
further that complainant did not establish that these reasons were a
pretext for discrimination.
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.
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
November 20, 2007
__________________
Date
1 The record reflects that complainant was terminated for cause from
agency employment effective October 21, 2005 for serious misconduct
including failure to cooperate in an official investigation, misuse of
government property and conduct unbecoming a supervisor. Complainant
filed his termination with the Merits System Protection Board (MSPB),
and on April 28, 2006, the MSPB affirmed the agency's removal action
(MSPB Docket No. DC-0752-06-0055-I-1). Complainant filed a petition
for review, which was denied by the MSPB on October 2006.
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0120073778
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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