Alfred L. Thompson, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 10, 2009
0120070991 (E.E.O.C. Mar. 10, 2009)

0120070991

03-10-2009

Alfred L. Thompson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Alfred L. Thompson,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120070991

Hearing No. 570-2006-00486X

Agency No. 200400472006103467

DECISION

On December 7, 2006, complainant filed an appeal from the agency's

November 8, 2006 final order concerning his equal employment opportunity

(EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 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(a).

For the following reasons, the Commission AFFIRMS the agency's final

order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as an Information Technology Specialist, GS-12, at the agency's Office

of Financial Systems and Operations in Washington, D.C. On September

20, 2005, complainant filed an EEO complaint alleging that he was

discriminated against on the bases of his sex, disability (arthritis in

knees and back), and age (57 at the relevant time) when, on August 19,

2005, his employment was terminated during his probationary period.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. Over complainant's objections, the AJ assigned to

the case granted the agency's motion for a decision without a hearing

and issued a decision on October 23, 2006, finding no discrimination.

The AJ found that, after viewing the evidence in the light most favorable

to complainant, a decision without a hearing was appropriate as there

were no genuine issues of material fact in dispute. Specifically, the

AJ found that assuming, arguendo, complainant established a prima facie

case of sex, age, and disability discrimination, the agency nonetheless

articulated legitimate, nondiscriminatory reasons for its actions that

complainant failed to show were a pretext for unlawful discrimination.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that he was subjected to discrimination

as alleged. On appeal, complainant contends that the AJ erred in issuing

a decision without a hearing as there are material facts in dispute.

ANALYSIS AND FINDINGS

As an initial matter we note that, as this is an appeal from a FAD

issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the

agency's decision is subject to de novo review by the Commission. 29

C.F.R. � 1614.405(a). 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, it is not appropriate for an AJ to issue a decision without

a hearing. In the context of an administrative proceeding, an AJ may

properly issue a decision without a hearing only upon a determination

that the record has been adequately developed for summary disposition.

Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,

2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,

2003).

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

without a hearing was appropriate, as no genuine dispute of material

fact exists. To prevail in a disparate treatment claim such as this,

complainant must satisfy the three-part evidentiary scheme fashioned

by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). He must generally establish a prima facie case by demonstrating

that he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 134 (2000); St. Mary's Honor Center v. Hicks, 509

U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of

the Navy, EEOC Request No. 05950351 (December 14, 1995).

Here, we concur with the AJ's finding that the agency articulated

legitimate, nondiscriminatory reasons for its actions. The record

reflects that complainant entered into service with the agency on October

3, 2004, and was serving a one-year probationary period at the time of

his termination. (Report of Investigation, Exhibit C-2). The record

also reflects that within the first six months of his being hired,

complainant had incurred charges of over $3,000.00 on his government

credit card. The record shows that, although complainant had been

reimbursed for these charges by the agency, he failed to pay the debt

to the credit card issuer despite written notice of his indebtedness

and the suspension of his account. Complainant stated, by e-mail dated

May 13, 2005, that the "entire balance should be paid within 2 weeks,"

but at the time of his termination the debt was still outstanding and

the agency had begun docking complainant's pay. (R.O.I., Exhibit C-5).

The record also reflects that complainant was charged Absent Without

Leave (AWOL) on May 17-18, 2005, when he ignored a direct order from

his supervisor to leave a training course and return to the office

after it was discovered that he had reported to the training despite

being told, in writing, on several occasions that his attendance was

not approved. Id. Complainant's second-line supervisor stated that

he requested that complainant's employment be terminated because of

complainant's failure to pay his government credit card debt and his

failure to follow directions which resulted in him being charged AWOL.

(R.O.I., Exhibit C-2). We concur with the AJ's finding that complainant

proffered no evidence from which a reasonable fact-finder could conclude

that the agency's actions were motivated by discriminatory animus toward

complainant's sex, age, or disability.

We find that viewing the record evidence in the light most favorable to

complainant, there are no genuine issues of material fact. We further

find that the AJ appropriately issued a decision without a hearing

finding no discrimination. Therefore, we discern no basis to disturb

the AJ's decision and the agency's final order is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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 10, 2009

Date

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0120070991

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013

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0120070991