01A43132_r
10-15-2004
Larry M. Dow, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Drug Enforcement Agency), Agency.
Larry M. Dow v. Department of Justice
01A43132
October 15, 2004
.
Larry M. Dow,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Drug Enforcement Agency),
Agency.
Appeal No. 01A43132
Agency No. D-03-3702
Hearing No. 100-2003-08469X
DECISION
Complainant timely initiated an appeal from the agency's final action
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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was a job
applicant for the position of Criminal Investigator (Special Agent),
GS-1811-07/12. Complainant sought EEO counseling and subsequently filed
a formal complaint on November 11, 2002, alleging that the agency had
discriminated against him on the bases of race, sex and disability when:
the agency failed to make a final offer of employment for the position
of Special Agent (GS-1811-07/12), Drug Enforcement Administration (DEA),
under Vacancy Announcement Number BA-2000.
The record reveals that while a conditional offer of agency employment
was pending for complainant in April 2001, he was approached by a Special
Agent from the DEA and other law enforcement officers at the airport
in Buffalo, New York. The record reveals that during the encounter,
complainant made statements to the law enforcement officers indicating
that he had been employed as a Special Agent. Complainant claimed that
he was a victim of racial profiling and filed a complaint with the Office
of Professional Responsibility (OPR). On November 2, 2002, a review
of complainant's application at the agency headquarters resulted in
a determination that complainant was not suitable for a position as a
Special Agent, as he was "Giglio" impaired as a result of making false
statements.<1> On February 21, 2003, complainant's conditional offer
of employment was withdrawn.
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 agency thereafter filed a Motion for
Summary Judgment on August 8, 2003.
In its motion, the agency argued that complainant's complaint should
be dismissed pursuant to 29 C.F.R. � 1614.107(a)(7), for failure
to cooperate. Specifically, the agency determined that complainant
consistently failed to cooperate in both the agency investigation and
the discovery process. The agency further determined that on four
separate occasions, complainant failed to make telephone conferences
to complete an interview with an investigator. The agency determined
that the last occasion, March 29, 2003, was scheduled on a Saturday,
but that complainant still failed to respond to the investigator's
repeated attempts to complete the interview and affidavit in support
of complainant's allegations. The agency determined that on April 2,
2003, the investigator sent a letter to complainant via certified
mail, informing him that if he did not respond within five days of
receipt of the letter, the investigator would submit a report without
complainant's completed affidavit. The agency stated that complainant
failed to respond to the investigator's April 2, 2003 letter. The agency
determined further that the EEO Program Manager sent a letter dated
April 2, 2003, to complainant, informing him that failure to respond
within fifteen days of receipt could result in the dismissal of his
complaint, but that a response was never sent to the agency. The agency
found that on April 4, 2003, the investigator made yet another attempt
to complete complainant' s affidavit by sending complainant a letter.
In the April 4, 2003 letter, complainant was informed that failure to
respond within fifteen days of receipt could result in the dismissal of
his complaint, but that a response was never sent to the investigator.
The agency determined that on April 14, 2003, the investigator sent
another letter to complainant requesting additional information and
advising complainant to use a prepaid Federal Express envelope, but
that despite the repeated attempts by the investigator, complainant
never provided the requested information.
The agency stated that on October 29, 2003, it filed a Motion to Compel
as a result of complainant's unresponsive and incomplete reasons, and
empty promises of compliance. The agency stated that in response to its
motion, complainant did not remedy the discovery errors, but opted for
more argumentativeness and lack of cooperation. Moreover, the agency
determined that complainant had engaged in contumacious conduct.
Furthermore, the agency argued that complainant did not establish a prima
facie case of race, sex or reprisal discrimination. The agency argued
that complainant's entire allegation "is a framework of conspiratorial
fantasy."
Moreover, the agency stated that assuming arguendo that complainant
did establish a prima facie case, the agency articulated legitimate
reasons for not offering complainant a position as a Special Agent.
Specifically, the agency concluded that complainant was unsuitable
based on a determination of "Giglio" impairment due to false statements
given to Special Agents during an unrelated encounter unrelated to his
employment and the subsequent OPR investigation. The agency noted that
in his affidavit, the Deputy Chief Counsel for Operational Law (Deputy
Chief Counsel) stated that during the encounter at the Buffalo airport
referenced above, complainant made a statement to a special agent that
"he had been targeted because he was black, and that he knew about
racial profiling in such circumstances because he used to be a Special
Agent for the United States Customs Service." The Deputy Chief Counsel
further stated that following the Buffalo encounter, the Special Agent
informed his Supervisor of what the complainant had said; and that the
Supervisor called complainant to determine whether complainant thought
he had been mistreated. The Deputy Chief Counsel stated that during the
conversation, complainant stated that he had been previously employed
as a Special Agent for the United States Immigration and Naturalization
Service. Furthermore, the Deputy Chief Counsel stated that it was later
determined that complainant had never been employed as a Special Agent for
either agency. The agency found that complainant did not establish that
more likely than not, management's articulated reasons were a pretext
to mask unlawful discrimination or retaliation.
On February 4, 2004, the AJ granted the agency's Motion for Summary
Judgment. The AJ found that the agency's Motion properly set forth the
facts and applicable law and that the document was incorporated in the
AJ's decision.
The agency did not issue a final decision. Because the agency did not
issue a final order within forty days of receipt of the AJ's decision,
the Commission determines that the AJ's decision is the final action of
the agency. 29 C.F.R. � 1614.109(i).
On appeal, complainant disputes the agency's Motion for Summary Judgment.
Complainant further states that he "never lied in an encounter with
federal agents (claiming to already be employed by DEA), this information
was fabricated by the DEA during the EEOC hearing proceedings."
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a 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.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
Accordingly, the agency's final action implementing the AJ's finding of
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
October 15, 2004
__________________
Date
1The term "Giglio" as used in the instant record refers generally to a
holding by the United States Supreme Court in Giglio v. United States,
405 U.S. 150 (1972), relating to the vulnerability to impeachment by
an agency witness when testifying in drug cases, based on the witness'
past conduct.