Neville B.,1 Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.Download PDFEqual Employment Opportunity CommissionMay 20, 20160120140913 (E.E.O.C. May. 20, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Neville B.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency. Appeal No. 0120140913 Hearing No. 550-2011-00458X Agency No. 401C10006 DECISION Complainant filed an appeal from the Agency’s final order dated December 5, 2013, finding no discrimination with regard to his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND In his complaint, Complainant alleged discrimination based on race (African American), sex (male), color (dark skinned), age (over 40), disability (hearing impaired), and in reprisal for prior EEO activity when he received a notice of removal and was terminated in 2010. Upon completion of the investigation of the complaint, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On November 4, 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120140913 2 2013, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. ANALYSIS AND FINDINGS 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, 322-23 (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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. The record indicates that at the relevant time period at issue, Complainant was employed as a Housekeeping Manager assigned to the Gold Country Inn, the 9th Force Support Squadron, 9th Mission Support Group, 9th Reconnaissance Wing, Air Combat Command, Beale Air Force Base, California. As a Housekeeping Manager, Complainant was required to drive around and inspect the various lodging rooms in order to ensure that the lodging staff was properly cleaning the lodging facilities and was required to possess a valid driver’s license and drive a motor vehicle. In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the alleged termination. The record indicates that on March 15, 2010, at 11:15 pm, a Marysville, California Police Officer (PO) was dispatched to an altercation and as a result according to the police: the PO drove up behind Complainant’s vehicle that was stationary and blocking free moving traffic; the PO saw him in the driver’s seat arguing with his wife who was asking him not to drive; he got out of the car and threw the car keys into the grass; the PO smelled a strong odor of an alcoholic beverage on his breath and person; his eyes were bloodshot and glassy; the PO asked him several times to take a series of field sobriety tests to measure his sobriety but he refused stating “Fuck no, I ain’t cooperating. You didn’t see me driving. I ain’t doing no tests;” the PO asked him to cooperate in giving a blood sample but he refused; he was arrested for driving under the influence (DUI) and was taken to the 0120140913 3 police station; and his blood was drawn. The police report indicated that tests results received on April 7, 2010, showed that Complainant’s alcohol level on the incident date was 0.23.2 The Agency indicated that the Marysville Police Department notified them of the above incident and Complainant also reported his arrest to the Agency on March 17, 2010. Accordingly, on March 17, 2010, under the Agency’s policy, AFI (Air Force Instructions) 31- 204, Complainant was notified of a preliminary suspension of his on-base driving privileges due to his DUI related incident, described above. On May 3, 2010, he was notified that his on-base driving privileges were revoked for one year due to his refusal to take a field sobriety test and a Blood Alcohol Content test on March 15, 2010. On April 27, 2010, he was notified of a proposed removal due to his loss of on-base driving privileges. On May 12, 2010, he was ultimately terminated from his position since he no longer possessed driving privileges which were required for his position. After a review of the record, we find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for his termination. It is noted that we do not address in this decision whether Complainant is a qualified individual with a disability. Furthermore, we note that Complainant has not claimed that he was denied a reasonable accommodation and he has not claimed that he was required to perform his duties beyond his medical restrictions. We find that Complainant failed to show that he was treated less favorably than a similarly situated employee under similar circumstances. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as he alleged and we find that the AJ properly issued a decision without a hearing in favor of the Agency. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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. 2 The record indicates and Complainant acknowledges that his DUI charge, described in this decision, was dismissed by the Superior Court of California, County of Yuba, on February 14, 2011, but he accepted the charges of resisting arrest. 0120140913 4 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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the 0120140913 5 time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 20, 2016 Date Copy with citationCopy as parenthetical citation