01991117
10-03-2000
Rafael Perez, Complainant, v. Herschel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Rafael Perez, )
Complainant, )
)
v. ) Appeal No. 01991117
) Agency No. 96-0550
Herschel W. Gober, )
Acting Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On November 23, 1998, complainant filed a timely appeal with the
Commission from the agency's final decision pertaining to his complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The
Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the agency's decision.
The record reveals that during the relevant time, complainant was employed
as a maintenance mechanic at the Edith Norse Rogers Veterans Hospital in
Bedford, Massachusetts. The record reflects that complainant believed
he was discriminated against during a series of incidents stemming from
his use of an agency vehicle. Specifically, on September 25, 1995,
a management official requested to see complainant's driver's license,
annotated his license, and notified security. Later that day, complainant
was frisked and escorted to the police station. On September 28, 1995,
agency security asked complainant to be fingerprinted and on October 11,
1995, complainant's prints were taken.
Complainant sought EEO counseling on the above matters. Informal efforts
to resolve complainant's concerns were unsuccessful. Subsequently,
complainant filed a formal complaint, dated November 14, 1995, based on
race and national origin.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). Finding no material facts in dispute,
the AJ issued Findings and Conclusions based on the written record on
September 28, 1998. The agency adopted the AJ's decision in its entirety
as its final decision.
On appeal, complainant argues that the AJ erred in issuing a decision
without a hearing. Complainant argues that a hearing was necessary to
address the many factual disputes and credibility issues presented by
his case.
Pursuant to 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. See 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. See Oliver v. Digital Equip. Corp. 846 F.2d 103,
105 (1st Cir. 1988). In the context of an administrative proceeding
under Title VII, summary judgment is appropriate if, after adequate
investigation, complainant has failed to establish the essential elements
of his/her case. See Spangle v. Valley Forge Sewer Authority, 839 F.2d
171, 173 (3rd 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.
In issuing a decision without a hearing, the AJ determined that
complainant �failed to demonstrate a material fact that would lead to
the establishment of an initial inference of discrimination during any
of [the alleged] incidents....� and that �any harassment or humiliation
suffered by the Complainant was not the result of any action that could
be deemed discriminatory on the basis of his race or national origin.�
Having carefully reviewed the record, the Commission determines that the
AJ properly issued a decision without a hearing. Although complainant
disputes facts on appeal, we agree with the AJ that they are not
material. Therefore, we now address the merit's of complainant's claims.
Regarding complainant's claim that he was discriminated against when
asked by the Motor Vehicle Operator (MVO) Supervisor to produce his
driver's license, the AJ found that the complainant's white co-worker
was also asked to show his license. Moreover, testimony showed that
supervisors were instructed to check licenses, and that complainant had
been asked by another agency employee to present his license before
lending him a vehicle. The AJ found that complainant failed to show
that the request was unusual or based on his race or national origin.
Regarding complainant's claim that the agency annotated his license and
notified security, the AJ noted that the investigation into complainant's
status began with a call from the MVO Supervisor, which complainant
has not alleged was motivated by discriminatory animus. Moreover, the
record indicated that the agency had previous problems with employees
driving agency vehicles without valid licenses. According to the AJ,
complainant failed to present facts which would give rise to an inference
of discriminatory motive in calling the police.
The AJ further determined that complainant failed to establish a prima
facie case of discrimination when he was asked to be fingerprinted.
The AJ concluded that the request was reasonable, and that complainant
failed to show that the request was based on his race or national origin.
When complainant was frisked and escorted to the police station, the
AJ found that it followed a computer inquiry showing that a party with
complainant's name had numerous arrests and a description that matched
complainant. According to the AJ, complainant's assertions that his
arrest and transport was discriminatory were �speculative�.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies and laws. We find that the proffered
facts do not create an inference of discriminatory animus. Complainant
has failed to establish that the agency's actions were different for a
similarly situated employee. The Commission notes that a white employee
described experiencing a similar incident, where he was questioned
about driving tickets and arrests; and that the employee was later
contacted by agency police. Further, the record indicates that there
had been prior problems with unlicensed employees, as well as patients,
taking agency vehicles. Moreover, when the computer search was done on
complainant's name, a record including felonies was found. Fingerprints
later revealed that the arrests involved complainant's brother, who had
used complainant's name. Therefore, we find that complainant has failed
to present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's race or national origin.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision .
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
October 3, 2000
____________________________
Date Carlton M. Hadden, Director
Office of Federal Operations
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.