0120072350
09-20-2007
Kenneth Dromgoole, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Kenneth Dromgoole,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072350
Agency No. 2003-0549-2006100008
Hearing No. 450-2006-00201X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 16, 2006 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. Complainant alleged that the
agency discriminated against him on the basis of race (African-American)
when, by notice dated September 30, 2005, he was terminated from his
appointment as a WG-1 Food Service Worker during his probationary period,
effective October 14, 2005.
Following an investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). The AJ issued a summary judgment
decision finding no discrimination. The agency fully implemented the
AJ's decision. On appeal, complainant contends that the matter was not
properly investigated. He also repeats arguments that were previously
made and addressed in the AJ's decision.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
We find that even assuming arguendo that complainant established a prima
facie case of race discrimination, the record reveals that the agency
articulated legitimate nondiscriminatory reasons for its actions,
namely that complainant verbally abused patients and coworkers.
While complainant denies these allegations, he has not provided any
evidence to support his assertions, while the agency on the other hand
has provided witness statements supporting its claims. Additionally,
there is no indication in the file that the complaint was not thoroughly
investigated or that complainant did not have the opportunity to
participate. Therefore, the Commission finds that complainant failed
to show that the agency's articulated reasons were pretext for race
discrimination. 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.1 The agency's final order 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
____9/20/07______________
Date
1 In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without 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); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
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0120072350
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072350