01a05720
09-07-2001
Dale Skipper, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Dale Skipper v. Department of the Air Force
01A05720
9/7/01
.
Dale Skipper,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A05720
Agency No. 7K0J97019
Hearing No. 150-98-8550X
DECISION
Complainant timely initiated an appeal from the agency's final order
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 basis of reprisal (prior EEO activity) when:
(1) he learned he was required to generate revenue to support his salary;
(2) he was constructively discharged; and (3) he was not selected for
promotion to the Motor Vehicle Operator position on or abut July 17,
1997. For the following reasons, the Commission AFFIRMS the agency's
final decision.
The record reveals that complainant, then a Small Engine Mechanic at the
agency's Tyndall Air Force Base, Florida facility, filed a formal EEO
complaint with the agency on December 20, 1997, 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.
As background, the AJ found that on or about September 18, 1996,
complainant learned that due to a Business Based Action (BBA), his work
status would be changed from that of a regular employee to a flexible
employee. As a result, complainant's work hours were reduced from
forty hours per week to four hours per week. Complainant believed he
was subjected to discrimination
on the bases of sex, age and reprisal, and filed a formal EEO complaint
over the BBA on January 6, 1997.<1> On February 27, 1997 complainant
resigned from his position.
While the agency was investigating complainant's January 1997 complaint,
complainant alleged that he was required to generate funds to pay his
own salary. He thereafter filed the instant complaint alleging same,
as well as constructive discharge and reprisal when he was not promoted
to a Motor Vehicle Operator position in July 1997.
The AJ found that complainant's claim that he was retaliated against when
he learned that he was required to generate his own funds to cover his
salary was directly related to complainant's January 1997 complaint that
challenged that agency's decision to reduce his hours due to financial
reasons. The AJ found complainant's allegation that he was required to
generate funds to cover his own salary was not a separate act, but was
the result of complainant's change in status which was already addressed
by an AJ. Since complainant already filed a complaint on his reduction
of hours, the AJ dismissed complainant's first claim pursuant to 29
C.F.R. � 1614.107(a)(1) for stating the same claim as that was already
decided or pending before the Commission. Likewise, the AJ also dismissed
complainant's claim that he was constructively discharged when his work
hours were changed since the matter had already been decided by an AJ.
Finally, the AJ examined complainant's claim that he was discriminated
against on the basis of reprisal when he was not promoted to the Motor
Vehicle Operator position. In that regard, the AJ concluded that
complainant established a prima facie case of reprisal discrimination.
However, the AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the evidence
revealed complainant and two others were deemed qualified applicants
for the position. However, one of the applicants requested to be
considered for the position under the Department of Defense's spousal
preference program. The AJ found that since the applicant was eligible
for the spousal preference, the applicant was selected for the position.
Furthermore, the AJ found there was no spousal preference exception
warranted.
The AJ found that complainant did not establish a genuine dispute as to
whether the agency's articulated reasons were a pretext to mask unlawful
retaliation. In reaching this conclusion, the AJ found that complainant
presented no evidence that would suggested the selection was based on
complainant's prior EEO activity.
On August 1, 2000, the agency issued a final order that implemented
the AJ's decision. Complainant makes no new contentions on appeal,
and the agency requests that we affirm its final decision.
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 esists 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.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's prior EEO activity. We agree
with the AJ's findings that the substance of complainant's constructive
discharge were already found to be non-discriminatory. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including 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
9/7/01
Date
1The record reveals that complainant's January 1997 complaint regarding
the BBA was brought before an EEOC Administrative Judge. The AJ in the
case issued a recommended decision of no discrimination without a hearing.
Thereafter, complainant appealed the agency's final decision. We affirmed
the agency's final decision which found no discrimination. The Commission
found the change in status and reduction of hour was due to the agency's
financial status at the time, and was not based on any illegal motive.
See Skipper v. Department of the Air Force, EEOC Appeal No. 01A05533.