0120122781
12-05-2012
Anthony Palermo, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Anthony Palermo,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120122781
Hearing No. 430-2011-00331X
Agency No. DOS-F-117-10
DECISION
On June 27, 2012, Complainant filed an appeal from the Agency's final order1 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. The Commission accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Operations Officer at the Agency's Passport Agency facility in Chicago, Illinois.
On August 9, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, in April 2010, Complainant submitted his paperwork for his claim with the Office of Worker's Compensation Programs (OWCP). Complainant believed the Agency delayed submitting his paperwork to OWCP.
The matter was accepted for an investigation. At the conclusion of the investigation, the Agency provided Complainant 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. The Agency filed a motion for dismissal of the complaint as well as a motion for a decision without a hearing. Complainant responded to the motions. The parties asked for oral arguments on the motions. The AJ granted the parties' request. The AJ held oral arguments and read his bench decision into the record in April 2012. The AJ subsequently issued his decision on July 27, 2012, finding no discrimination. The AJ found that Complainant failed to show that the Agency in fact delayed the processing of his OWCP claim. Further, the AJ held that Complainant did not provide evidence that the Agency officials acted in retaliation for his prior EEO complaint. The AJ also noted that the matter constituted a collateral attack against the OWCP process. Accordingly, the AJ concluded that Complainant failed to establish that the alleged action constituted unlawful retaliation.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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, issuing a decision without holding a hearing is not appropriate.
After a careful review of the record, we find the AJ properly determined that there was no genuine issue of material fact in this case. Specifically, we find that Complainant failed to set forth sufficient facts showing that there was a genuine issue still in dispute. Moreover, Complainant failed to provide in this appeal any evidence or argument that material issues are in dispute. Therefore, we concur in the AJ's determination and find that summary judgment was appropriate in this case.
Based on our careful de novo review of the entire record before us, the Commission finds that the AJ's recommended findings and conclusions properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We conclude that Complainant failed to establish by preponderant evidence that any of the Agency's actions were in retaliation for Complainant's prior EEO activity. Accordingly, we discern no basis to disturb the AJ's findings and conclusions or the Agency's adoption of the AJ's decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order implementing the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
December 5, 2012
__________________
Date
1 The record indicated that the Agency issued its initial final order on June 19, 2012. However, the Agency rescinded the final order. The EEOC Administrative Judge (AJ) had read his bench decision into the record in front of the parties in April 2012; but the AJ did not issue the decision until July 27, 2012. Subsequently, the Agency issued its final order implementing the AJ's decision on August 2, 2012.
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0120122781
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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