0120114165
02-23-2012
Sylvester E. Harding, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sylvester E. Harding,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120114165
Hearing No. 430-2009-00146X
Agency No. 200405652008103448
DECISION
Complainant filed an appeal from the Agency’s August 16, 2011,
final order concerning his equal employment opportunity (EEO) 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.
The Commission deems the appeal timely and accepts it pursuant to 29
C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Housekeeping Aide at the Agency’s Fayetteville Veterans Affairs
Medical Center facility in Fayetteville, North Carolina.
On August 4, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964
with respect to the assignment of his duties.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. Over Complainant's objections, the AJ
assigned to the case granted the Agency’s motion for summary judgment
and issued a decision without a hearing on July 14, 2011.1
Briefly, the AJ found that Complainant alleged that he was
given more duties and was assigned to work a larger area that his
co-workers. Specifically, Complainant claimed that on January 17, 2008,
he was assigned to clean four buildings, as well as the warehouse,
mailroom and file room. Complainant claimed that the additional
duties were in retaliation for his protected activity because they
happened shortly after a hearing before the Merit Systems Protection
Board. In response to Complainant’s claims, the supervisor stated that
Complainant’s assignments were not permanently changed. Rather, on the
date in question, due to being understaffed, he said he assigned several
employees, including Complainant, to cover the entire facility. The
supervisor stated that all the custodial employees had to do more work.
Based on this evidence, the AJ found that Agency management provided
legitimate, nondiscriminatory reasons for the action taken, which
Complainant failed to prove was pretext for unlawful discrimination. The
AJ noted that while the parties may not have agreed on the actual number
of areas Complainant was assigned to clean on the date in question,
there was no dispute between the parties that there was no change to
Complainant’s major duties, the length of his workday, or the rate of
his pay. Moreover, Complainant conceded that he did not actually know
the duties of his coworkers. The Agency subsequently issued a final
order adopting the AJ’s finding that Complainant failed to prove that
the Agency subjected him to discrimination as alleged.
The instant appeal followed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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. If a case
can only be resolved by weighing conflicting evidence, issuing a decision
without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the
instant complaint was suitable for summary judgment. The record is
adequately developed and there are no identified disputes of material
fact.
In the instant case, the Commission finds that Complainant has failed
to show that he was treated differently than other employees because
of his protected activity. Thus, Complainant has failed to show by a
preponderance of the evidence, that the Agency’s reasons for giving
him extra work on one day when it was understaffed was a pretext for
discrimination. On appeal, Complainant also raises for the first time
that he additionally believes he was discriminated against on the basis
of disability in this matter, although he provides no information about
this alleged condition. Again, however, the record does not support a
finding that Complainant was treated differently than his coworkers on
January 17, 2008, because of a disability.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 23, 2012
__________________
Date
1 It is not clear why the Agency’s motion is dated August 12, 2011,
and the AJ’s decision is dated July 14, 2011.
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0120114165
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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