01A24532
12-04-2003
Theodore S. Ceckiewicz, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Theodore S. Ceckiewicz v. Department of Veterans Affairs
01A24532
December 4, 2003
.
Theodore S. Ceckiewicz,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A24532
Agency No. 200N-294
Hearing No. 380-A1-8105X
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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. In his complaint, the complainant alleged that he had been
subjected to unlawful discrimination on the basis of his sex and age (date
of birth November 4, 1950) when, in November, 1999, he was removed from
his position with the agency. For the following reasons, the Commission
AFFIRMS the agency's final order.
The record reveals the following information pertinent to this appeal.
At all times relevant to the agency action at issue, the complainant was
employed (in a probationary status) as a Public Affairs Specialist at the
agency's Puget Sound Health Care System facility in Seattle, Washington.
Believing he had suffered unlawful discrimination as described above, the
complainant filed a formal complaint with the agency. At the conclusion
of the agency's investigation into the complaint, the complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). The AJ informed the parties
that he intended to grant summary judgment to the agency, and invited
the parties to provide responses to this intention. After receiving
a response from each party, the AJ granted summary judgment to the
agency on the sex discrimination claim, and held a hearing on the age
discrimination claim. Following the hearing, the AJ issued a decision
finding no age discrimination.
In his decision, the AJ found that the complainant had failed to establish
a prima facie case for his age discrimination claim, as he had failed
to present any evidence which showed that the agency had considered
his age when it terminated his employment. The AJ also found that
while the complainant had alleged that his supervisor made a derogatory
comment about his age, the supervisor had credibly testified that she
never made the alleged comment. The AJ further found that while the
evidence showed that the supervisor was disliked by several employees,
and was considered by them to be a poor manager, it also showed that
the decision to terminate the complainant's employment was based upon
concerns over his job performance, not his age.
The agency adopted the AJ's decision in full, and this appeal ensued.
On appeal, the complainant contends that the AJ erroneously made
a credibility finding regarding the supervisor's alleged age-based
comment, as findings on credibility are inappropriate for summary
judgment purposes. The agency responded by pointing out the error of
the complainant's contention on appeal, correctly noting that summary
judgment was limited to the complainant's sex discrimination claim and
a hearing was held on his age discrimination claim, and therefore the
complainant's argument against the AJ's credibility finding in his age
discrimination claim is misguided.
After our full review of the record on appeal, we perceive no reason
to disturb the decision of the AJ or the agency. Summary judgment
was appropriate as to the complainant's sex discrimination claim, as
there existed no genuine issue as to any fact material to that claim,
and he failed to identify or present�after the AJ provided him with
ample notice of his need to do so to avoid summary judgment in the
agency's favor�sufficient evidence from which a reasonable finder of
fact could infer that sex discrimination played any role in the agency's
termination decision. Furthermore, the AJ's findings of fact regarding
the complainant's age discrimination claim are supported by substantial
evidence in the record, see 29 C.F.R. � 1614.405(a) (noting that all
post-hearing factual findings by an AJ will be upheld on appeal to
the Commission if supported by substantial evidence in the record);
Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474,
477 (1951) (defining �substantial evidence� as �such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion�)
(citation omitted), and there is no indication that the AJ erred
in his credibility determination regarding the supervisor's alleged
discriminatory comment.
Therefore, after a careful review of the record, including the
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, it is the
decision of the Commission to AFFIRM the agency's final order.
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 4, 2003
Date