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,
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.