01a03411
08-10-2000
Robert Figueroa, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Robert Figueroa v. Department of Defense
01A03411
August 10, 2000
.
Robert Figueroa,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A03411
Agency No. 98DCMW44002
Hearing No. 360-99-8458X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of sex (male), national origin
(Puerto Rican), and reprisal (prior EEO activity) in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> Complainant alleges that he was discriminated against when, on
October 15, 1997, the Commissary Store Manager (CSM) proposed suspending
him for fourteen days for verbally threatening to kill a co-worker (the
Co-worker), and the Assistant Commissary Officer (ACO) later suspended him
for five days. The appeal is accepted pursuant to 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 agency's final action.
The record reveals that complainant was a Meat Cutter at the agency's
facility at Fort Sam Houston, Texas. On August 22, 1997, complainant
allegedly threatened to kill the Co-worker while in the agency parking
lot as both were leaving for the day. The Co-worker informed the CSM
the following day and the CSM initiated an investigation by the Military
Police during which five witnesses corroborated the Co-worker's account.
On October 15, 1997, the CSM proposed suspending complainant for fourteen
days. In response, complainant denied threatening the Co-worker, but
apologized for the incident. The ACO mitigated the suspension to five
days citing complainant's remorse and apology.
Thereafter, complainant filed a formal EEO complaint claiming
discrimination as cited above. At the conclusion of the investigation
he requested a hearing before an EEOC Administrative Judge (AJ). The AJ
determined that there were no material facts in dispute and issued a
decision without a hearing finding no discrimination.
The AJ concluded that complainant established a prima facie case of
discrimination based on sex and national origin because he is a member of
the protected groups and was subjected to an adverse action which, if left
unexplained, raised an inference of discrimination. The AJ also concluded
that complainant established a prima facie case of discrimination based on
reprisal because he filed a prior EEO complainant on October 2, 1997, one
of the responsible officials was aware of that activity, and the adverse
action occurred subsequent to his protected activity, thus establishing
a casual connection between the actions based on closeness in time.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the suspension
was justified because complainant threatened the Co-worker. The Co-worker
averred that he took the threat seriously. Witnesses to the incident
stated to the Military Police that they also perceived the threat as real.
The ACO averred that he was very concerned about the incident and wanted
to impress upon complainant the seriousness of the matter, but reduced
the suspension to five days because of complainant's remorse and apology
to the Co-worker. The ACO stated that all threats of violence in the
workplace are taken seriously by the agency. The AJ further found that
complainant failed to show that the agency's articulated reasons were
pretextual and that there was no indication that the disciplinary action
was based on impermissible discrimination.
The agency's final action implemented the AJ's decision. On appeal,
complainant argues that two material facts were in dispute, namely,
the questions of what was the alleged threat, and how was the conflict
resolved.
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. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States 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 judgment is appropriate if, after adequate investigation,
complainant has failed to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d Cir. 1988). In determining whether to grant 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.
After a careful review of the record, we find the AJ properly determined
that there was no genuine issue of material fact in this case.
Specifically, we find that complainant failed to set forth sufficient
facts showing that there was a genuine issue still in dispute. Moreover,
complainant failed to provide in this appeal any evidence or argument
that material issues are in dispute. Therefore, we concur in the AJ's
determination and find that summary judgment was appropriate in this
case.
Based on our careful de novo review of the entire record before us, the
Commission finds that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We conclude that complainant failed to establish by preponderant evidence
that the agency's articulated reasons for suspending him were a pretext
for discrimination. Accordingly, we discern no basis to disturb the AJ's
decision or the agency's adoption of the AJ's decision. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final decision.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
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).
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:
Carlton M. Hadden, Director
Office of Federal Operations
August 10, 2000
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.