01a53652
09-12-2005
Bruce E. Hall, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Bruce E. Hall v. General Services Administration
01A53652
September 12, 2005
.
Bruce E. Hall,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A53652
Agency No. GSA-04-CPOCBH-1
Hearing No. 100-2004-00551X
DECISION
Complainant filed an appeal from an agency's March 22, 2005 notice
of final action concerning his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In his complaint filed on December 29, 2003, complainant, a Structural
Engineer, GS-14, at the agency's Public Building Service, alleged
discrimination based on disability (mental depression) when (1) he was
issued a letter of suspension for two days beginning October 16, 2003; and
(2) on December 23, 2003, he learned that his job had been reclassified
from �inherently governmental� to �commercial equivalent.� Following the
completion of the investigation of his complaint, complainant requested
a hearing on the complaint before an EEOC Administrative Judge (AJ).
On February 17, 2005, the AJ issued a decision without holding a hearing,
finding no discrimination. The agency's final action implemented the
AJ's 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. 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.
Upon review, the Commission finds that the grant of summary judgment
was appropriate, as no genuine dispute of material fact exists. The AJ
stated, assuming arguendo that complainant had established a prima
facie case of discrimination, that the agency has articulated legitimate
non-discriminatory reasons for its actions. With regard to claim (1),
the agency stated that complainant was issued the alleged suspension due
to his improper usage on his computer at work. Specifically, in March
2003, other employees, including the Director of the Office of Program
Management, Office of the Architect, observed complainant viewing sexually
explicit material and pornographic images on his computer at work.
It is noted that only after this incident, complainant informed his
supervisors of his disability.
With regard to claim (2), the agency's Office of the Chief Architect
asked managers to identify jobs as being potentially �commercially
equivalent.� The agency stated that complainant's position was
identified as such because he was primarily involved in research
related to window blast mitigation and thus not considered �inherently
governmental.� Specifically, the agency indicated that complainant's
position was not reclassified because of his improper Internet usage.
Complainant claimed that this classification �paves the way for them to
get rid of me, without any right of appeal if I do not screw up on my
computer.� The agency stated and the Commission agrees that complainant's
contentions amounted to purely speculative future harm which did not
constitute an adverse action. After a review of the record, the AJ
determined that complainant failed to show by a preponderance of the
evidence that the agency's proffered reasons were pretextual.
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, the agency's final
action is hereby AFFIRMED 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.<1>
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 12, 2005
__________________
Date
1The Commission does not address in this
decision whether complainant is a qualified individual with a disability.