01A24811
12-23-2003
Michael F. Longo, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Michael F. Longo v. Department of the Air Force
01A24811
December 23, 2003
.
Michael F. Longo,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A24811
Agency No. 00DCMW41001
Hearing No. 360-AO-8514X
DECISION
Complainant timely initiated an appeal from the agency's final order
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 appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Store Worker, WG-04, at Laughlin
Air Force Base (AFB) Commissary, in Del Rio, Texas, filed a formal EEO
complaint on December 12, 1999, alleging that the agency had discriminated
against him in reprisal for prior EEO activity when:
(1) his voluntary reassignment from the Kingsville Naval Air Station
(NAS) Commissary to the Laughlin AFB Commissary resulted in less pay
even though he was told that his pay would not change;
on October 24, 1999 his first-level supervisor (S1) at the Laughlin
AFB Commissary, threatened to take personnel action against him;
he was subjected to negative comments from management regarding his
previous EEO complaint activity;
on June 8, 1999 he received a Letter of Requirement;
he was told not to return to work unless medical documentation was
provided;
he was charged Absent Without Leave (AWOL) for the week of October 24
through October 28, 1999; and
he was given a Notice of Proposed 14 Calendar Day Suspension.
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 concluded that complainant established a prima facie case
of reprisal discrimination that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that complainant
did not establish that more likely than not, the agency's articulated
reasons were pretexts to mask unlawful discrimination/retaliation.
The AJ found that complainant requested a reassignment from the
Kingsville NAS Commissary to the Laughlin AFB Commissary, and that the
transfer was arranged and complainant was reassigned in the same grade
and step. The AJ further found that after complainant reported to AFB,
it was discovered that his hourly rate of pay would decrease because
of the applicability of a different locality pay rate for Del Rio,
Texas area. The AJ concluded that management reassigned complainant as
complainant requested and that management was not aware that the pay rate
would change or they deliberately withheld such information; therefore,
there was no evidence to indicate that there was a discriminatory intent
in reassigning complainant at his own request.
With respect to issues number two through six, the AJ noted that
management became aware of complainant's prior EEO activity sometime
in October of 1999. The AJ found that from April 13, 1999 until
June 8, 1999 complainant requested and received approval for leave on
eighteen separate occasions. The AJ also found that on June 8, 1999,
complainant was issued a Letter of Requirement due to excessive use of
sick and annual leave. The AJ further found that the letter stated that
complainant was advised that effective immediately, he needed to furnish
medical certification for any sick leave requested. The AJ noted that
in October, 1999 complainant again did not furnish medical certification
for his absence on October 15 and October 18 through 21, 1999. The AJ
found that on October 24, 1999, S1 advised complainant that he would not
be allowed to return work until he furnished a medical certificate. The
AJ also found that S1 misunderstood the advice she received from the
Personnel Management Specialist and erroneously charged complainant
AWOL for October 24 through the 28. However, the AJ found that once
the mistake was discovered complainant was reimbursed for the erroneous
AWOL charge.
Regarding the final issue, the AJ found that management issued the Notice
of Proposed Suspension because of complainant's excessive use of annual
and sick leave. Finally, the AJ found that the Notice was based entirely
on complainant's failure to come to work and failure to provide sufficient
medical documentation.
The agency's final order implemented the AJ's decision. On appeal,
complainant restates arguments previously.
STANDARD OF REVIEW
We begin by noting that we are reviewing the AJ's decision without
a hearing, and the final agency decision adopting them, under a de
novo standard of review. See 29 C.F.R. � 1614.405 (a) (stating that
a �decision on an appeal from an agency's final action shall be based
on a de novo review...�); see also EEOC Management Directive for 29
C.F.R. Part 1614 (rev. Nov.9, 1999) (�EEO MD-110"), at 9-16 (providing
that an administrative judge's �decision to issue a decision without a
hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo�).
This essentially means that we should look at this case with fresh eyes.
In other words, we are free to accept (if accurate) or reject (if
erroneous) the AJ's, and agency's, factual conclusions and legal analysis-
including on the ultimate of whether intentional discrimination occurred,
and on the legal issue of whether any federal discrimination employment
statute was violated. See id. at 9-15.
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 only appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exist
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, the issuance of
a decision without a hearing is not appropriate. Similarly, and AJ may
not issue a decision without a hearing if he or she actually has to find
facts first to do so. After a careful review of the record, the Commission
finds that the issuance of a decision without a hearing was appropriate,
as no genuine dispute of material fact exists. Specifically, we note
that assuming arguendo that complainant established a prima facie
case of reprisal discrimination, the agency established legitimate
non-discriminatory reasons for its actions which complainant did not
rebut with sufficient evidence from which a reasonable fact-finder could
conclude that unlawful retaliatory animus motivated the agency's actions.
We conclude that complainant has not �set forth specific facts showing
that there is a genuine issue for trial.� Fed. R. Civ. P. 56 (e).
We further find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Therefore, for the foregoing reasons, we affirm the agency's final order
adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
December 23, 2003
__________________
Date