01985900
05-30-2001
Alfred Ellis, Complainant, v. Steven R. Cohen, Acting Director, Office of Personnel Management, Agency.
Alfred Ellis v. Office of Personnel Management
01985900
5/30/01
.
Alfred Ellis,
Complainant,
v.
Steven R. Cohen,
Acting Director,
Office of Personnel Management,
Agency.
Appeal No. 01985900
Agency No. OPM-96-22
Hearing No. 100-97-7506X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
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., the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he was
discriminated against on the bases of race (Caucasian), sex (male), age
(58 at the relevant time), reprisal (prior EEO activity), and disability
(depression and attention deficit disorder) when management harassed
him and forced him to retire. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that complainant, then a GS-13 Personnel Management
Specialist at the agency's Washington, D.C. facility, filed a formal EEO
complaint with the agency on June 28, 1996, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ found that complainant failed to provide any evidence in support
of his allegation that his supervisors harassed him in an attempt to
force him to retire. Rather, the AJ found complainant applied for an
early buy out in March 1995, before his first line supervisor became
his supervisor in July 1995. Furthermore, complainant later applied
for disability retirement. When his application was denied for lack of
medical documentation, he pursued the appeals process with the Merit
Systems Protection Board. Complainant's application for disability
retirement eventually was approved and became effective July 1997.
The AJ found that complainant also alleged in his complaint that
the agency denied him his requests for accommodation, specifically,
his request for reassignment to another supervisor, and for a 20 hour
work week. In that regard, the AJ found complainant's requests for
accommodation were denied because of complainant's failure to provide
adequate medical documentation. In sum, the AJ found complainant failed
to present sufficient evidence that would establish a genuine issue of
material fact existed.
On June 16, 1998, the agency issued a final agency decision adopting
the AJ's Recommended Decision. On appeal, complainant contends that
the agency denied him reasonable accommodations for his disability and
harassed him so he would retire.
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 does not
sit as a fact finder. Id. 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. A disputed 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. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
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. Assuming, arguendo,
that complainant is an individual with a disability, and that he
established a prima facie case on his other bases of discrimination,
we find complainant failed to produce sufficient evidence that would
raise a genuine issue of material fact. Rather, we agree with the AJ's
determination that the evidence reveals complainant pursued retainment
pursuant to the early buy out program. When he then decided to put
retirement off for one year through the buy out program, he pursued
disability retirement. Furthermore, in light of the fact that the
supervisor allegedly primarily responsible for forcing complainant into
retirement was assigned to complainant five months after complainant
initially applied for retirement, we find insufficient evidence that
his treatment of complainant caused complainant to retire.
We do note, however, that complainant's complaint contains allegations
other than his claim that he was forced into retirement, including his
claims that he was denied reasonable accommodations for his disability.
However, the record reveals complainant raised those allegations in
a grievance, and that the grievance was referred to an arbitrator.
An aggrieved employee who files a grievance with an agency whose
negotiated agreement permits the acceptance of grievances which allege
discrimination may not thereafter file a complaint on the same matter
under part 1614 irrespective of whether the agency has informed the
individual of the need to elect or of whether the grievance has raised
an issue of discrimination. 29 C.F.R. � 1614.301(a). As such, those
claims will not be discussed herein.
We further note that complainant failed to present evidence that any
of the agency's actions were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus toward complainant's
disability, age, sex or race. 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 (M0900)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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
5/30/01
Date