01996206
09-25-2001
William W. Kirk, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
William W. Kirk v. United States Department of Agriculture
01996206
September 25, 2001
.
William W. Kirk,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01996206
Agency No. CR98-0202
Hearing No. 130-98-8355-X
DECISION
Complainant timely initiated an appeal from the agency's final decision
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he
was discriminated against on the bases of race (Black) and religion
(Muslim)<1> when he was not allowed to return to his duty station, after
being issued a letter of caution, following an on-the-job altercation
with an employee whom he supervises.
The record reveals that at the relevant time, complainant was employed
as a Supervisory Veterinarian Medical Officer at the agency's USDA Food
Safety and Inspection Service, Trussville, Alabama, facility. On February
27, 1997, an altercation allegedly occurred between complainant and an
employee under complainant's supervision. As a result of the alleged
altercation, complainant's supervisor (S1) instructed complainant to take
a day of leave, and proceeded to reassign complainant to another facility
until an investigation into the incident could be completed. As a result
of the investigation, complainant was issued a non-disciplinary letter
of caution in September, 1997. S1 states that due to complainant's
personality and past conduct, she believed complainant could no longer be
an effective supervisor at the Trussville facility, and that she feared
workplace violence if complainant were allowed to return at that time.
Complainant filed a formal EEO complaint with the agency on January 24,
1998, alleging that the agency had discriminated against him as referenced
above. 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 failed to establish a prima facie
case of discrimination on the bases of race or religion. Specifically,
the AJ found that complainant failed to demonstrate that similarly
situated employees not in his protected classes were treated differently
under similar circumstances. The AJ further concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions, and
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The agency's final decision implemented the AJ's decision. Complainant
makes no new contentions on appeal, and the agency requests that we
affirm its final decision.
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. 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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.
After a careful review of the record, the Commission finds that the AJ did
not err when she concluded that there were no genuine issues of material
fact in this case. In so finding, we note that complainant has not shown
he was treated less favorably than other similarly situated supervisors
outside of his protected classes. Further, the agency has proffered
legitimate, non-discriminatory reasons for its actions which complainant
has failed to show were mere pretext for prohibited discrimination.
Namely, that the S1 believed there was the potential for workplace
violence if complainant returned to the Trussville facility, and that
until the completion of the investigation into the alleged altercation
of February 27, 1997, complainant should be assigned to another facility
under her supervision.
The AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. Complainant failed
to present any persuasive evidence that the agency's actions were
motivated by discriminatory animus toward complainant's race or religion.
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 decision.
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
September 25, 2001
__________________
Date
1The record reflects that complainant originally listed reprisal as a
basis in his formal complaint, however complainant states this was an
oversight as he has participated in no prior protected activity. We will,
therefore, not address the basis of reprisal in the instant decision.