Lindsey L. Jackson, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 31, 2000
01993913 (E.E.O.C. Mar. 31, 2000)

01993913

03-31-2000

Lindsey L. Jackson, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Lindsey L. Jackson, )

Complainant, )

) Appeal No. 01993913

v. ) Agency No. ANBKF09505F1170

) Hearing No. 130-9808227X

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination

on the basis of race (African-American), color (Black), and sex

(male), in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges he was

discriminated against when the agency: (1) failed to provide him with

information regarding his absences to assist him in processing his

worker's compensation and disability retirement claims; (2) changed

the complainant's office and shift assignment; and (3) charged the

complainant with being absent without leave (AWOL) effective October

17, 1994. The appeal is accepted in accordance with 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). For the following

reasons, the Commission affirms the FAD.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a mail clerk GS-0305-04, at the agency's Acquisition Center, U.S. Army

Aviation and Troop Command in St. Louis, Missouri. Complainant alleged

that his immediate supervisor (RMO: White, male) and other divisions of

the agency discriminated against him as described above.

Complainant sought EEO counseling and subsequently, filed a complaint

on March 28, 1995. The agency dismissed the complaint, but in Jackson

v.U.S. Department of the Army, 01961612 (March 27, 1997) we vacated the

agency's dismissal and remanded the complaint for investigation. At

the conclusion of the investigation, complainant requested a hearing

before an EEOC administrative judge (AJ). Finding no material facts in

dispute, the AJ issued a recommended decision on the complaint without a

hearing pursuant to 29 C.F.R. � 1614.109(e), finding no discrimination.

The FAD concurred with the AJ's recommended decision.

ISSUES PRESENTED

The issues presented herein are whether the agency erred in finding

no dispute of material fact, and whether complainant proved his claim

of race, color, and/ or sex discrimination by a preponderance of the

evidence.

ANALYSIS AND FINDINGS

Pursuant to 64 Fed. Reg. 37,644, 37,657 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. �1614.109(g)(3)), if an AJ

"determines upon his or her own initiative that some or all facts are

not in genuine dispute," he or she may "issue findings and conclusions

without holding a hearing." 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 stated that summary judgment is

appropriate where the trier of fact determines that, given applicable

substantive law, no genuine issue of material fact exists. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine"

if the evidence is such that a reasonable fact-finder could find in favor

of the non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103,

105 (1st Cir. 1988). In the context of an administrative proceeding

under Title VII, summary judgement is appropriate if, after adequate

investigation, [complainant] has failed to establish the essential

elements of his/her case. Spangle v. Valley Forge Sewer Authority,

839 F.2d 171, 173 (3d Cir. 1988). In response to a motion for summary

judgment, the trier of fact's function is not to weigh the evidence

and render a determination as to the truth of the matter, but only to

determine whether there exists a genuine factual dispute. Anderson,

477 U.S. at 248-49.

The courts have been clear that summary judgment is not to be used

as a "trial by affidavit." Redmand v. Warrener, 516 F.2 766, 768

(1st Cir. 1975). The Commission has noted that when a party submits

an affidavit and credibility is at issue, "there is a need for

strident cross-examination and summary judgement on such evidence is

improper." Pedersen v. Department of Justice, EEOC Request No. 05940339

(February 24, 1995).

Over the complainant's objection and after reviewing the complainant's

January 5, 1999 motion in opposition to ruling without a hearing, the

AJ rendered a decision without a hearing.<2> Therefore, our decision

on the instant appeal shall be based on a de novo review of the record.

See 64 Fed. Reg 37,659 (1999) (to be codified at 29 C.F.R. �1614.405(a).

Since complainant's allegation constitutes a claim of disparate treatment,

it must be analyzed under the analysis enunciated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Complainant has the initial burden

of establishing, by a preponderance of the evidence, a prima facie case

of discrimination.

1. Leave Information Request

Complainant alleged discrimination when the RMO failed to provide

information to him regarding his leave activity in order to process

a claim for worker's compensation and for disability retirement.

The record indicates that the complainant missed days from work . Some or

all of the absences could have been restored under a U.S. Department of

Labor leave buy back plan. Under the plan, complainant's had to first

ascertain the exact number of days missed. Complainant requested the

information from RMO. RMO refused to provide the information, citing an

unspecified agency policy. Complainant maintains that RMO discriminated

against him by not providing the requested information.

In support of the claim, complainant offered the affidavits of witnesses

in his January 5, 1999 response to the AJ's notice of intention to rule

without a hearing. According to complainant, his evidence establishes

that the RMO was capable of providing the requested information, that

similar requests, by the complainant, have been granted in the past,

that RMO was instructed by a superior to �help� the complainant, that

RMO instructed his assistant not to help complainant in acquiring the

information, and that other African-American employees did not enjoy

working for RMO.

Under the proffered facts, we find that the complainant could not

create an inference of discrimination. We note that the record contains

no direct evidence of discrimination. While circumstantial evidence

may create an inference of discrimination, the proffered evidence in

the present case, does not produce an inference that RMO's failure

to provide the information was motivated by a discriminatory animus.

Without an inference of discrimination, complainant has failed to set

forth specific facts which, if believed, would lead us to the conclusion

that complainant could satisfy the requirements of a prima facie case.

Therefore, summary judgement is appropriate. See Celotex v. Catrett,

477 U.S. 317, 322-23 (1986).

2. Office and Shift Reassignment

Complainant also alleged discrimination when the activity changed

his office and shift assignment during his absence from the office.

The record reveals that the complainant was subject to a reduction in

force (RIF) and offered a reassignment. During the period in question,

the complaintant was on leave. The agency contacted the complainant while

he was on leave and offered him a reassignment as a Peripheral Equipment

Operator. Complainant accepted the reassignment. Complainant alleges

that the personnel office failed to inform him that his new position was

on the evening shift. Complainant maintains that the failure to inform

him of his duty hours was motivated by discriminatory animus. We find

that complainant proffered no evidence to substantiate this claim.

Complainant failed to set forth any allegations that the office and

shift reassignment were different for a similarly situated employee nor

has he made allegations from which we could infer discriminatory animus.

3. AWOL Status

Finally, complainant alleged discrimination when he was placed in

an AWOL status on October 17, 1994. The record indicates that once

complainant provided the agency with the necessary medical documentation,

the complainant's leave status was changed from AWOL to leave without

pay (LWOP). Complainant alleges that his assignment and the failure

to catagorize his leave status as LWOP is discriminatory. We find

no inference that the agency's actions with respect to the leave was

discriminatory. Complainant failed to set forth any allegations that

his initial placement in an AWOL status was different for a similarly

situated employee, nor has he made allegations from which we could infer

discriminatory animus.

CONCLUSION

Upon this de novo review, we find the complainant failed to set forth

facts that would establish his initial burden. Accordingly we affirm

the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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:

3/31/2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

________________________ _____________

Equal Employment Assistant Date

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 We find for the reasons set forth below, that the AJ's ruling was

appropriate.