01a54309
11-10-2005
Joseph McDuffie, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Joseph McDuffie v. Department of Transportation
01A54309
November 10, 2005
.
Joseph McDuffie,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A54309
Agency No. 2-02-2019
Hearing No. 100-2002-08028X
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. Complainant alleged that he
was subjected to discrimination on the bases of race (African-American)
and reprisal for prior EEO activity when:
Complainant was suspended for seven calendar days by correspondence
dated July 5, 2001.
2. Complainant was placed on an extended Performance Improvement Plan
(PIP) by correspondence dated September 5, 2001.
3. Complainant was continuously subjected to frequent criticism of
complainant's work by management.
Complainant was issued a Notice of Proposed Removal dated November
13, 2001.
Complainant was suspended from May 27 to June 9, 2002.
Complainant was the victim of theft of personal property.
On March 18, 2005, an EEOC Administrative Judge (AJ) issued a decision
without a hearing finding that there was no genuine issue of material fact
in dispute, and concluded that complainant had not been discriminated
against. Specifically, the AJ found the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to rebut. On May 9, 2005, the agency issued a decision finding
no discrimination. The agency fully implemented the AJ's decision.
Complainant now appeals from that 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.
We find that the agency articulated a legitimate, nondiscriminatory
reason for its actions. Regarding claims 1 and 5, complainant's
supervisor stated that complainant was suspended because he failed to
follow instructions outlined in the leave restriction letter he had
been issued in October 2000. As to claim 2, complainant's supervisor
reported that he recommended complainant be placed on a PIP because
complainant failed to meet the performance expectations of his job.
Complainant's supervisor said that the PIP was extended several times
in order to allow complainant to correct deficiencies. Regarding claim
3, complainant's supervisor stated that any criticism of complainant's
work focused on the aspects over which he had control and its quality
in relation to performance expectations. Complainant's supervisor
claimed that he reviewed complainant's work and identified areas needing
improvement and deficiencies requiring correction. With respect to claim
4, complainants's supervisor stated that he recommended complainant's
removal because complainant continued to violate the terms of the leave
restriction. The record reveals that the Deciding Official decided
to reduce the proposed removal action to a fourteen day suspension.
In relation to claim 6, the agency said that, during complainant's
suspension, property was lost or stolen from complainant's office.
The AJ found that complainant did not show that a management official
was responsible for or allowed any theft.
The Commission finds that complainant has failed to rebut the agency's
articulated legitimate, nondiscriminatory reason for its actions.
Moreover, complainant has failed to show, by a preponderance of the
evidence, that he was discriminated against on the bases of race or
reprisal or that he was subjected to discriminatory harassment.
The agency's decision finding no discrimination is AFFIRMED.
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
November 10, 2005
__________________
Date