0120081093
08-27-2009
Cary D. Cunningham, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Cary D. Cunningham,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120081093
Hearing No. 430-2007-00112X
Agency No. DFAS-IN-CP-06-044
DECISION
On December 28, 2007, complainant filed an appeal from the agency's
November 29, 2007 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 deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's
(AJ) issuance of a decision without a hearing was appropriate; and
(2) whether complainant established that he was subjected to disparate
treatment on the bases of race, sex, disability, and age.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as an Accounting Technician, GS-0525-05, at an agency facility
in Norfolk, Virginia. The record reflects that complainant was
hired for a term appointment not to exceed thirteen months, effective
February 5, 2006, and he was subject to a one-year probationary period.
Although complainant was diagnosed with schizophrenia in May 1977, he
never informed management officials of his medical condition during his
employment with the agency.
On March 17, 2006, complainant attended a training class with his
co-workers. During the class, several employees noticed that complainant
was behaving strangely. One of his co-workers, a Financial Specialist,
informed the Vendor Pay Branch Chief (RMO), complainant's second level
supervisor, that she had been approached by another employee who allegedly
stated that complainant "reeked of alcohol" and may have been inebriated
at the training session. RMO and a Supervisory Accounting Technician
separately spoke with complainant during a break in training, and both
observed him slurring his speech and stumbling. RMO subsequently sent
complainant home on administrative leave, informing him that he could
leave after eating his lunch and that he could make up any training he
missed on a later date.
Complainant's first level supervisor was not at work on March 17, 2006.
However, when she returned to work on March 20, 2006, an Accounting
Technician informed the supervisor that she felt complainant's behavior
may have been the result of a "mental health problem." When RMO informed
the supervisor that several individuals thought complainant seemed
inebriated during training, she replied "suppose it is something else."
On March 28, 2006, RMO issued complainant a "Notice of Removal During
Probationary Period" for reporting to work "under the apparent influence
of alcohol" on March 17, 2006. In April 2006, complainant appealed his
removal to the Merit Systems Protection Board (MSPB). However, the MSPB
dismissed the appeal for lack of jurisdiction. Cunningham v. Department
of Defense, MSPB Docket No. DC-315H-06-0466-I-1 (June 21, 2006).
Complainant filed an EEO complaint dated June 26, 2006, alleging that he
was discriminated against on the bases of race (African American), sex
(male), disability (Schizophrenia), and age (57 years old at the time
of the incident) when, on March 28, 2006, he was removed from federal
service.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation and a notice of his right to
request a hearing before an AJ. Complainant timely requested a hearing.
Over the complainant's objections, the AJ assigned to the case granted
the agency's September 26, 2007 motion for a decision without a
hearing and issued a decision without a hearing on November 13, 2007,
finding no discrimination. The AJ's decision found that complainant
failed to establish that the responsible agency officials were aware
of his disability or that the agency's legitimate, nondiscriminatory
reasons for his removal 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.
CONTENTIONS ON APPEAL
On appeal, through his representative, complainant argues that the AJ
erred in finding no discrimination. He argues that the symptoms he
displayed were caused by his medication, that his supervisor was "on
notice" of his medical condition prior to his termination, and that
he was treated differently and discriminated against because of his
medical condition. The agency did not submit a statement in response
to the appeal.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first 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. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that the
AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists such that a hearing on the merits is warranted.
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
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). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case of
discrimination,1 we concur with the AJ's determination that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
RMO stated in her affidavit that complainant was terminated during
his probationary period "because he was unable to perform his normal
work duties." She stated that she observed that complainant "was
slurring his speech and stumbling, his eyes were watery and reddish,
his hands were shaking, and when he stepped close I could smell alcohol."
A Supervisory Accounting Technician who also spoke to complainant on March
17, 2006 stated in the record that she observed complainant slurring his
speech and having difficulty standing up without supporting himself.
She further stated that she had heard that complainant had appeared
inebriated at work in the past. A Human Resources Specialist stated in
the record that RMO consulted with him prior to issuing complainant the
notice of removal and followed all appropriate regulatory guidelines
and directives with respect to the termination.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. We find that complainant failed to provide any evidence of
pretext in the record. Moreover, we find that the record is devoid of
any evidence that the agency's actions were motivated by discriminatory
animus.
Complainant argues on appeal that his medical condition and his medication
caused side effects that led agency officials to believe he was under the
influence of alcohol on March 17, 2006, and he was unfairly terminated
as a result of these side effects. However, there is no evidence
in the record that complainant ever informed any of the responsible
agency officials before or after March 17, 2006 that he had a medical
condition or was on medication. We note that complainant states in his
affidavit that he did not believe that the agency officials were aware
of his condition. Complainant argues that the agency was on notice of
his medical condition because his supervisor was told by an employee
that she thought his behavior was caused by a "mental health problem,"
and the supervisor stated to RMO "suppose it is something else" when
discussing complainant's behavior. However, we concur with the AJ's
determination that these vague statements alone are insufficient to
impute knowledge of complainant's existing medical condition to the
agency or trigger a duty to inquire. Additionally, we note that the
supervisor was not at work to assess the situation on March 17, 2006,
and she was not involved in the processing of complainant's removal.
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue
of material fact is in dispute. Complainant also failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus towards him. We discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, 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
_____08/27/09_____________
Date
1 For purposes of this decision, the Commission assumes without finding
that complainant is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
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0120081093
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081093