0120112373
03-21-2012
Joe L. Mondragon,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112373
Hearing No. 451-2011-00007X
Agency No. ARCCAD09NOV05028
DECISION
Complainant filed an appeal from the Agency’s final order dated March 3,
2011, finding no discrimination with regard to his complaint. For the
following reasons, we AFFIRM the Agency’s final order.
BACKGROUND
In his complaint, dated February 12, 2010, Complainant, a former
Machinist, WG-3414-11, in the Agency’s Metal Manufacturing Branch, Local
Manufacturing Division, Directorate of Manufacturing/ Process Production,
at the Corpus Christi Army Depot, alleged discrimination based on
race/national origin (Hispanic), disability (respiratory problems; lower
back problems), and age (over 40) when on November 9, 2009, the Agency
terminated him from his one-year temporary appointment. Upon completion
of the investigation of the complaint, Complainant requested a hearing
before an EEOC Administrative Judge (AJ). On February 22, 2011, the AJ
issued a decision without holding a hearing, finding no discrimination.
The Agency’s final order implemented the AJ’s decision.
ANALYSIS AND FINDINGS
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, assuming
arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated
legitimate, nondiscriminatory reasons for the alleged termination.
The AJ noted that Complainant was hired as a temporary Machinist position
on March 2, 2009, not to exceed March 1, 2010. Specifically, the Agency
stated that Complainant was terminated during his temporary appointment
because he failed to demonstrate the knowledge, skills and abilities
necessary to perform the duties of his position at an acceptable level.
The Agency further indicated Complainant failed to perform his tasks,
comply with safety instructions, and accomplish his assigned tasks
within acceptable timeframes. Complainant’s supervisor stated that
during Complainant’s midpoint performance evaluation, he previously
discussed with Complainant his deficiency in 17 of 30 areas of technical
competence and they filled out an Individual Development Plan (IDP).
Complainant however continued to be deficient in several major areas
of his IDP. Complainant does not dispute this. Specifically, the
supervisor stated that on three separate occasions, Complainant failed
to properly secure hazardous materials (“HAZMAT”) in a violation of
HAZMAT regulations, and as a result, he was locked out of the system
each time and was unable to check out HAZMAT items. Complainant does
not dispute this. The supervisor indicated that in his three years of
experience, an employee had been locked out of the system only once.
After a review of the record, we agree with the AJ that Complainant
failed to rebut the Agency’s legitimate, nondiscriminatory reasons
for Complainant’s termination. We also agree with the AJ’s finding
that Complainant failed to show that he was treated less favorably than
a similarly situated employee under similar circumstances. Furthermore,
assuming (without deciding) that Complainant was an individual with a
disability we note that Complainant has not claimed that he was denied
a reasonable accommodation. Based on the foregoing, we find that
Complainant has failed to show that the Agency’s action was motivated
by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency’s final order is AFFIRMED.
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
3/21/12
__________________
Date
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0120112373
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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