0120080211
09-10-2009
Kenneth Bey, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kenneth Bey,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080211
Hearing No. 440-2006-00191X
Agency No. 200J05782006100488
DECISION
On October 12, 2007, complainant filed an appeal from the agency's
September 17, 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is deemed timely and is accepted for de novo review, pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether the EEOC Administrative Judge (AJ) properly granted summary
judgment in this case.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Housekeeping Aid, WG-2/5, at the Hines, Illinois VA Hospital.
On January 17, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of sex (male), disability
(back injury), and reprisal for prior protected EEO activity [arising
under Title VII and Rehabilitation Act] when:
(1) on or about November 7, 2005, he was issued a blank performance
appraisal and instructed to sign it;
(2) on November 15, 2005, he was issued written notice that his
chain of command included two sections chiefs rather than a supervisor
and a section chief; and
(3) he was informed that if a suitable position could not be found
to accommodate his medical restrictions that he may be subjected to a
non-disciplinary separation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. When complainant did not specifically object to
the Motion, the AJ assigned to the case granted the agency's motion for
a decision without a hearing and issued a decision without a hearing on
September 6, 2007.
AJ Decision
In his decision, the AJ first noted the following: by letter dated April
10, 2006, complainant was informed that the agency partially dismissed
his complaint of discrimination determining that his allegation that the
notice informing him of his possible separation was only a potential
action and thus did not demonstrate that complainant was aggrieved.
The AJ further noted that on April 12, 2006, complainant was actually
separated from the agency, and therefore, on April 14, 2006, complainant
filed an appeal of his termination with the Merit Systems Protection
Board (MSPB), i.e., issue (4). On May 18, 2006, the MSPB dismissed
complainant's appeal without prejudice based on an agreement by the
parties that complainant would apply for a disability retirement annuity
and if his application was accepted the MSPB appeal would be dismissed
with prejudice. If complainant's disability retirement application was
rejected complainant could re-file without prejudice. By letter dated
October 17, 2006, complainant's disability retirement application was
approved effective the first week after his separation from employment.
The AJ then explained that after the instant case had been assigned
to him, on October 3, 2006, complainant filed a motion to amend his
complaint to include his termination of April 12, 2006. The AJ concluded
however, that complainant had elected to pursue his eventual termination
through the MSPB, and therefore, he waived his right to raise the same
allegations through the EEO process. The AJ also found that based on
the evidence of record, including submission of the parties, the agency
properly dismissed complainant's allegation that he was discriminated
against when he was notified of a possible non-disciplinary termination.
The AJ then proceeded to address the two remaining allegations, issues
(1) and (2), as follows: complainant could not establish a prima facie
case of discrimination on any alleged basis because he did not show
that he suffered an adverse action as to either issue. As to issue
(1), the AJ explained that on November 7, 2005, complainant met with his
supervisor (the Housekeeping Section Chief) (S1) to discuss his overall
performance rating for the period April 1, through September 30, 2005.
The performance evaluation consists of evaluations on a Met/Not Met basis
in two areas; Medical Center Wide competencies and Position Specific
competencies, including use of equipment. S1 rated complainant only on
the Medical Center Wide competencies. In the section where complainant
should have been rated on position specific competencies, S1 wrote,
"Cannot rate employee has been on light duty since 3/05." The AJ noted
that this was the form that complainant alleged was blank. Thus, the
AJ found that the facts did not establish the underlying allegation
that complainant was issued a blank performance evaluation or that
the agency's actions were in any way adverse. The AJ further found
no evidence that the agency's motivation was influenced by prohibited
discriminatory animus.
The AJ then addressed complainant's allegation that he was discriminated
against when he was issued written notice that his chain of command
included two sections chiefs rather than a supervisor and a section
chief. The AJ found that complainant had been detailed numerous
times to accommodate him. As a result of these details, complainant
was reassigned to different areas within the Environmental Management
Division. During these temporary details complainant may have had a
section chief as his immediate supervisor; however, the AJ
found no evidence that these actions affected any tangible employment
right or had the effect of discouraging complainant from engaging in a
protected activity. The AJ concluded that complainant was not subjected
to discrimination when the agency reassigned him to accommodate his
medical restriction and such accommodation resulted in complainant having
two section chiefs within his rating chain. 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
Complainant makes no new arguments on appeal. The agency asks the
Commission to affirm the final order.
ANALYSIS AND FINDINGS
Initially, we note that as complainant did not, on appeal, specifically
challenge the agency's dismissal of issues (3) and (4), we will presume
that he accepts the dismissals, and we shall limit our analysis to issues
(1) and (2) above. The dismissal of issues (3) and (4) is affirmed.
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").
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 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's decision referenced the appropriate regulations,
policies, and laws. Moreover, we find that the AJ properly issued a
decision without a hearing because complainant failed to show that a
genuine issue of material fact exists or that there were any credibility
determinations such that a hearing on the merits is warranted.
The allocation of burdens and order of presentation of proof in a Title
VII or Rehabilitation Act case alleging disparate treatment discrimination
is a three step procedure: complainant has the initial burden of proving,
by a preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
We find that, assuming complainant is disabled under the Rehabilitation
Act, and that he could establish a prima facie case of discrimination
on all of his alleged bases, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the record
indicates that, contrary to complainant's assertion otherwise, complainant
was not issued a blank performance evaluation. The performance evaluation
merely noted the fact that complainant's rater could not evaluate an
aspect of his performance. There is no persuasive evidence that this
action was either adverse or based on complainant's sex, disability or
previous EEO activity. Moreover, with respect to issue (2), the record
indicates that complainant was reassigned to different areas within
the Environmental Management Division due to the numerous times that he
was detailed. Although, as a result of these details, complainant may
have had two section chiefs in his chain of command, we agree with the
AJ that there is no evidence that these actions affected any tangible
employment right or had the effect of discouraging complainant from
engaging in a protected activity.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue of
material fact is in dispute. Therefore, we AFFIRM the agency's final
order.
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
_____9/10/09_____________
Date
2
0120080211
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120080211