05980746
09-19-2000
Alton W. Bennett, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Alton W. Bennett v. Department of the Navy
05980746
September 19, 2000
.
Alton W. Bennett,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Request No. 05980746
Appeal No. 01962752
Agency Nos. DON 89-65584-001; 89-65584-007; 89-65584-008
Hearing Nos. 340-94-3224X; 340-94-3225X; 340-94-3226X
DECISION ON REQUESTS FOR RECONSIDERATION
INTRODUCTION
On May 14, 1998, Alton W. Bennett timely initiated a request to this
Commission to reconsider the decision in Alton W. Bennett v. John
H. Dalton, Secretary, Department of the Navy, EEOC Appeal No. 01962752
(April 16, 1998).<1> On June 11, 1998, the agency timely initiated its
request to reconsider that decision. EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.405(b)).
The party requesting reconsideration must submit written argument
or evidence which tends to establish one or more of the following
two criteria: the appellate decision involved a clearly erroneous
interpretation of material fact or law; or the decision will have
a substantial impact on the policies, practices or operations of the
agency. Id. For the reasons set forth herein, the requests are GRANTED.
ISSUE PRESENTED
Whether the previous decision properly vacated the final agency decision
(FAD) and remanded this matter to the agency for issuance of a new FAD
and, if not, whether complainant was subjected to discrimination as
contended below.
BACKGROUND
Complainant alleges that, in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., he was
discriminated against based on his national origin (one-quarter Native
American)<2>, disability (30% veteran's entitlement) and retaliation
for prior EEO activity. The specific incidents (�SI�) complainant sets
forth in support of his claim of discrimination are: (a) he received
allegedly unfair performance appraisals in August 1988 and August 1989;
(b) he was reprimanded for not contesting another employee's workers
compensation claim; (c) an agency attorney (the Attorney) allegedly made
intimidating and coercive statements to him in April 1989; (d) he was
not selected for promotion to the position of Supervisory Electronics
Engineer, GM-14; (e) he received a letter from the Deputy EEO Officer
(DEEOO) which he contended was threatening and wrongfully remanded
his amendments to an EEO complaint back for informal counseling; (f)
management officials allegedly conspired to willfully destroy merit
promotion records (Agency Vacancy No. N-44-87) because the records were
pertinent to one of his EEO complaints; (g) an EEO Counselor allegedly
conspired with management EEO officials and improperly conducted an
informal fact finding on one of his EEO complaints; (h) the DEEOO
issued a memorandum which he contended wrongfully remanded one of
his EEO complaints for further informal counseling; (i) his first line
supervisor allegedly verbally threatened him in August 1989 with a legal
suit for statements he made in amendments to one of his EEO complaints;
(j) he learned in August 1989 that his supervisor was given access to
amendments to an EEO complaint, which violated his right to privacy; (k)
his first line supervisor informed him in August 1989 that the supervisor
had been directed to investigate an allegation made by the EEO Complaints
Manager that he had made her fear for her life; (l) he learned in October
1989 that a coworker had received an Outstanding performance rating and
a substantial performance pay raise award, while complainant had not;
(m) his first line supervisor allegedly punished him with an oral
admonishment in November 1989, for making libelous statements in one
of his formal EEO complaints; and (n) the Attorney allegedly passed a
sexually coercive note to complainant's attorney.
In November 1983, complainant was selected for promotion to the position
of Supervisory Electronics Engineer, GM-13. Complainant's supervisor, the
Department Director for Code 02 (DD-1) rated complainant's performance as
�Superior� in 1984, and as �Successful� in 1985. In 1986, DD-1 became
the Department Director of another code and, in 1986, complainant's
performance was rated as �Marginal� by his new supervisor (DD-2).
In early 1987, complainant was reassigned to another code and again came
under the supervision of DD-1.
In June 1987, an employee was placed in complainant's division and
under his supervision. This employee (E-1) had filed various claims of
retaliation against the agency with the Office of Special Counsel and the
Merit Systems Protection Board (MSPB) based on his �whistleblower� status
and had recently prevailed on a claim filed with the MSPB.<3> In July
1987, complainant requested that E-1 be reassigned outside his division.
Complainant also made the first of numerous requests to receive legal
representation in matters relating to E-1 and expressed concerns about
his personal legal liability.
In July 1987, complainant wrote a memorandum entitled �Useful Work Vice
Waste,� in which he offered various options to effect E-1's reassignment
outside complainant's division.<4> Agency officials objected to
complainant's actions in providing E-1 with a copy of this memorandum
before giving it to his superiors and contended that this action precluded
management from working as a team to address the issue. In addition,
the language in the memorandum was viewed as accepting E-1's allegations,
without any attempt to first determine the accuracy of the allegations.
As noted below, agency officials also contended that they experienced
difficulty in obtaining an affidavit from complainant in connection with
one of E-1's complaints.
Complainant's performance was rated as �Fully Successful� in 1987
and 1988. In explaining his ratings of complainant under the various
performance elements, DD-1 testified that he acknowledged that
supervising E-1 presented certain unique challenges and that he had
taken this into account. However, he felt that complainant devoted an
inordinate amount of time to matters relating to E-1 to the detriment
of the other twenty or so employees under complainant's supervision.
DD-1 noted that a similarly situated supervisor (SEE-1, who was outside
complainant's protected classes) also had a difficult personnel problem
but was better able to appropriately allocate his time.
Meanwhile, in June 1988, complainant was responsible for completing
the supervisor's section of a claim filed with the Office of Workers
Compensation (OWCP) by E-1. Complainant and DD-1 disagreed with
respect to which box on the claim should be checked, the one labeled
�traumatic injury� or the one labeled �occupational illness.� DD-1
advised complainant to seek advice from the agency office responsible
for such matters. (Ultimately, E-1's claim was accepted by OWCP as an
occupational illness.) This scenario resulted in complainant's contention
in SI (b) that he was reprimanded for not contesting E-1's OWCP claim.
In early 1988, complainant and eight others applied for a position of
Supervisory Electronic Engineer, GM-14. (See SI (d)). Two candidates
were rated as �Highly Qualified� by the Selection Advisory Panel and
two others, including complainant, were rated as �Qualified.� After
interviewing these four candidates, the panel unanimously recommended one
of the candidates who had been rated as �Highly Qualified.� Complainant
was informed of his non-selection for this position in 1989. At his
hearing, complainant extensively questioned the panelists regarding his
rating and their recommendation of the other candidate.
In SI (f), complainant alleges that management officials conspired to
willfully destroy merit promotion records in connection with another
selection (Agency Vacancy Announcement No. N-44-87) because the records
were pertinent to one of his EEO complaints. The agency asserted that
complainant had not sought EEO counseling with respect to that vacancy
and that the records were later routinely purged in the normal course
of business.
Complainant's mid-year performance evaluation was held in February
1989. It stated that complainant had improved in the element �Personnel
Management� but noted under the element �Communications� that while he
had �good communication downward,� his communication with his peers
and supervisors needed improvement. Complainant requested guidance
on improving his performance, and DD-1 suggested in a hand written
memorandum that complainant could �create the perception that [he]
trust[s] the motivation of management,� because complainant's performance
during a meeting with the Commanding Officer (CO) gave the impression
that complainant �may be a �hostile witness' in any forthcoming [E-1]
hearings.� DD-1 also suggested that complainant participate in some
extracurricular activities, such as the EEO Committee or the Recreation
and Welfare Committee.
During the hearing on complainant's instant complaint, DD-1 testified that
he did not use the term �hostile witness� in any legal sense; rather, he
was referring to the difficulty agency officials had in trying to obtain
an affidavit from complainant in connection with one of E-1's complaints.
(Further discussed in SI (c) below.) DD-1 maintained that the agency
was merely attempting to have complainant provide truthful information
in order to create an accurate record pertaining to E-1.
Regarding SI (c) (that the Attorney made intimidating and coercive
statements to him in April 1989), on April 24, 1989, the Attorney
contacted complainant to confirm a meeting scheduled for the purpose of
preparing him to testify at an upcoming EEO hearing on a complaint filed
by E-1. Complainant refused to meet with the Attorney, who responded
with words to the effect that he was �shooting [himself] in the foot by
refusing to allow [her] to prepare [him] for the hearing.� An agency
official thereafter issued a written order directing complainant to
cooperate with the Attorney. Complainant thereafter met with the
Attorney as ordered, and was not disciplined for his initial refusal.
(While complainant also made references to a conversation with the
Attorney on April 27, 1989, the EEOC Administrative Judge (AJ) found
insufficient evidence to establish what, if any, statements the Attorney
allegedly made on that date.)
Complainant's performance was rated as �Exceeds Fully Successful� in
1989, and the rating reflected improved performance in five elements,
including Communications. Complainant received a merit salary increase
of $686.00, as well as three $100.00 and one $75.00 Special Act awards.
Complainant later learned that SEE-1 received a performance rating
of �Outstanding,� and a merit performance award of $2,500.00. At the
hearing, DD-1 testified as to his reasons for rating SEE-1's performance
higher than complainant's, including his belief that SEE-1's programs
were more complex and technically diverse. Complainant contended that
SEE-1's performance should not have been more highly rated, arguing that
certain negative Program Management Status Reports should have been
considered to SEE-1's detriment. However, DD-1 testified that he did
not use these reports to evaluate an employee's performance, in part
because program status was affected by factors outside the employee's
control (such as funding) and in part because he feared that problems
would not be fully and accurately reported if the reports were used in
performance evaluations. DD-1 testified as to his reasons for rating
SEE-1 higher in the various performance elements, including Personnel
Management and Communications.
Complainant maintained that his performance ratings, and other agency
actions, constituted retaliation against him for not taking action
against, or for otherwise protecting, E-1. Complainant argued that he
was viewed as �not playing ball� and not being a �team player.� Agency
officials testified, and complainant conceded, that complainant was never
asked or directed to take any action against E-1. Agency officials
testified that they merely wished for E-1 to become a productive
employee who performed his work and recognized that the agency had to
balance accomplishment of its mission against E-1's right to pursue his
complaints. Complainant was advised to allow E-1 a reasonable amount
of time in connection with his complaints but not to permit E-1 to spend
a majority of his working hours on his complaints.
With respect to SI (e) (complainant received a letter from the DEEOO which
he contended was threatening and wrongfully remanded his amendments to
an EEO complaint back for informal counseling) and SI (h) (the DEEOO
issued a memorandum which complainant contended wrongfully remanded
one of his EEO complaints for further informal counseling), the record
reflects that complainant filed his formal EEO complaint directly with
the Secretary of the Navy, without providing a copy to the applicable
EEO Office. Complainant later began submitting a series of �amendments�
to his complaint, despite being advised by various agency officials on
numerous occasions (both verbally and in writing) that he could not add
new issues in this manner and must first seek EEO Counseling. On August
11, 1989, the agency rejected portions of the complaint. On appeal,
this Commission advised complainant that �the agency properly sent
[various] claims ... back to the informal counseling stage because
they lack the necessary specificity to determine their acceptability
[and properly sent back other contentions because] the record does not
indicate that [they] were counseled.� Complainant was advised that
�each claim of discrimination must first be counseled before a formal
complaint on that claim may be filed [and] the agency properly refused to
amend complainant's formal complaint by adding claims that had not been
discussed with the EEO Counselor.�<5> As noted by the AJ even after
receipt of this decision, complainant continued to submit �amendments�
to his complaint, eventually submitting some fourteen �amendments.�
In SI (i), complainant contended that his first line supervisor allegedly
verbally threatened him in August 1989 with a legal suit for statements he
made in amendments to one of his EEO complaints and in SI (j), complainant
stated that he learned in August 1989 that his supervisor was given access
to amendments to an EEO complaint, which violated his right to privacy.
The record reflects that, in the course of responding to complainant's
contentions, various persons became aware of them. Furthermore, because
complainant submitted his �amendments' directly to the Secretary of the
Navy, as well as on occasion to the CO or other officials, more than the
usual number of people handled the material in the course of transmitting
it to the applicable EEO Office. Various persons expressed the belief
that they had been libeled by complainant's phrasing of his assertions and
inquired whether they could pursue legal action against complainant.<6>
An agency Executive Director suggested that DD-1 review the material
and consider counseling complainant regarding the wisdom of appearing
to make �malicious statements ... with the intent to harm or destroy
the reputation, authority, or official standing of� various persons.
DD-1 reviewed the material and consulted with the Attorney. Thereafter,
DD-1 met with complainant and advised him to state his assertions and his
objections to various actions without personally attacking the individuals
who took the actions. DD-1 testified that he took this step in part
because of complainant's frequent expressions of concern regarding his
personal liability in connection with E-1's complaints. DD-1 denied
that his discussion with complainant constituted an admonishment and
denied any intent to dissuade complainant from filing any complaints,
maintaining that he wished only to �help [complainant] avoid [possible]
legal liability.� Hearing Transcript (HT) at 1374.
In SI (k), complainant alleges discrimination when DD-1 informed him in
August 1989 that he had been directed to investigate a claim made by the
EEO Complaints Manager (through the DEEOO) that he had made her fear
for her life. The record reflects that complainant and the various
EEO personnel had poor interpersonal relations. During complainant's
initial meeting with the EEO Counselor, she viewed him as acting in a
hostile manner, inasmuch as he questioned her qualifications, neutrality,
maintenance of confidentiality, and knowledge of his reputation and
the reputation of E-1.<7> Complainant also was evasive about the
specifications of his complaint and again requested that an agency
attorney be appointed to represent him. As for SI (k), in August
1989, complainant went to the EEO Office to collect certain documents.
The EEO Complaints Manager asked him to sign a form acknowledging receipt
of the documents. The EEO Complaints Manager found complainant's
response and behavior frightening and asked him to leave the office,
but he refused. She informed the DEEOO of the incident, who in turn
informed the Executive Director. The Executive Director subsequently
instructed DD-1 to investigate the incident and, after the investigation,
complainant was issued a Letter of Reprimand for engaging in inappropriate
and disrespectful conduct.<8>
In SI (n), complainant contends that the Attorney allegedly passed a
sexually coercive note to complainant's attorney. The record reflects
that, in January 1991, complainant filed suit in the U.S. District Court
Southern District of California (the "District Court") (Case No. 90-0066-R
(CM)(February 19, 1991)). This suit included several of the specific
incidents challenged herein and complainant sued both the agency and
numerous supervisors and coworkers in the personal capacities, citing
various state and constitutional torts.<9> Shortly before this suit was
filed, the Attorney met with complainant's attorney in his office and
delivered various documents. Complainant asserts that the Attorney also
left a note stating: �Hello Gorgeous! Wanna get romantic? I'll bring
the wine, you light the fire.� In essence, complainant maintains that
the Attorney offered sexual favors in order to coerce his attorney to
persuade him not to file the civil suit. Complainant initially expressed
uncertainty as to whether the note was written by the Attorney, the DEEOO
or the EEO Counselor and requested that the AJ obtain a handwriting sample
to identify the writer; nonetheless, complainant had already sent copies
of the note to the Secretary of the Navy, the General Counsel for the
Navy and other federal agencies, along with accusations that the Attorney
had attempted to �sexually coerce� his attorney. All of the persons
suspected by complainant denied writing the note and complainant's
attorney did not know who wrote the note, expressing his opinion that
the matter was a waste of time and not worth discussing.
Following the dismissal of complainant's civil suit and the various
appeals to the Commission noted above, complainant's instant complaint
was investigated by the agency and the matter was heard before an AJ
over a 10-day period on various dates between July and September 1994.
After the hearing, complainant submitted a 107-page closing argument.
On October 25, 1995, the AJ issued a 59-page Recommended Decision (RD)
finding that complainant failed to establish discrimination or reprisal.
As a preliminary matter, the RD noted that in July 1994, the agency
filed a motion for summary judgment on SI (b), (c), (e), (f), (k) and
(l). After reviewing the agency's brief and the Report of Investigation
(complainant did not file a brief in opposition to the motion), and
drawing all inferences in the light most favorable to complainant, the
AJ found that there were no issues of material fact with respect to SI
(b), (c), (e), (f) and (k) inasmuch as complainant failed to establish a
prima facie case of discrimination or reprisal. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976). Specifically, the AJ was not persuaded that
complainant established that the disagreement complainant had with DD-1
regarding how to complete the supervisor's section of the OWCP form was
tantamount to a reprimand for not contesting E-1's OWCP claim (SI (b)).
The AJ found that complainant failed to establish that any adverse action
was in fact taken against him when DD-1 �merely informed him that he
thought [complainant] was checking the wrong box and ... should contact
the� agency office responsible for such matters. Accordingly, the AJ
found that complainant failed to establish that he was aggrieved within
the meaning of the Commission's Regulations. 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. � 1614.107(a)(1)). Similarly, the AJ was not persuaded that
the statements made by the Attorney in April 1989 were intimidating and
coercive (SI (c)) or were sufficiently severe as to render complainant
aggrieved.
The AJ noted that this Commission had previously ruled that complainant
could not amend his EEO complaint to add new claims without first seeking
EEO counseling. See supra EEOC Appeal No. 01893799. Accordingly,
the AJ granted summary judgment with respect to SI (e) (complainant
received a letter from the DEEOO which he contended was threatening and
wrongfully remanded his amendments to an EEO complaint back for informal
counseling).<10>
As for SI (f) (management officials allegedly conspired to willfully
destroy merit promotion records (Agency Vacancy No. N-44-87) because
the records were pertinent to one of his EEO complaints), the AJ noted
that complainant had never timely sought EEO counseling with respect to
that selection. The AJ was not persuaded that complainant was aggrieved
by the agency's routine purging of these documents after expiration of
the applicable time period for retention. 29 C.F.R. � 1614.107(a)(1);
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)).
Regarding SI (k) (DD-1 informed him in August 1989 that he had been
directed to investigate a claim made by the EEO Complaints Manager
that he had made her fear for her life), the AJ found that complainant
became agitated and yelled at the EEO Complaints Manager, and that
she was frightened by his raised voice, angry facial expressions, red
facial coloring and protruding neck veins. The AJ noted that after
DD-1's investigation, complainant was issued a Letter of Reprimand for
inappropriate and disrespectful conduct toward the EEO Complaints Manager.
The AJ determined that there was no evidence on record of any dispute
of a material fact regarding this incident and that complainant was not
subjected to discrimination or reprisal when the agency investigated
the concerns raised by the EEO Complaints Manager.
Turning to the merits of complainant's remaining contentions, the AJ first
ruled that complainant failed to establish that he was a individual with a
disability as defined in the Commission's Regulations. The AJ found that
complainant could not rest his claim of disability discrimination solely
on the assertion that his personnel files indicated that the Department
of Veterans Affairs had granted him a 30% disability rating entitlement.
Inasmuch as there was no evidence in the record regarding complainant's
alleged disability and no evidence that the agency regarded him as
disabled, the AJ found that he failed to meet his burden of establishing
that he was a qualified individual with a disability.<11>
Insofar as complainant contended that his 1988 performance appraisal
constituted retaliation for his support of E-1, the AJ found �several
obstacles to [this] argument.� First, while E-1 was known to have filed
claims of retaliation against the agency based on his �whistleblower�
status at the Office of Special Counsel and the MSPB, the AJ found
that there was no showing that E-1 had filed EEO complaints or raised
retaliation for activities protected by Title VII prior to 1988. Further,
while E-1 filed an EEO complaint in 1988, he filed it directly with the
Secretary of the Navy, and there was no evidence that the applicable
agency EEO office or officials became involved prior to 1989. The AJ
further found no evidence that DD-1 or the Executive Director were aware
of any activity undertaken by complainant on behalf of E-1 prior to
issuance of the performance appraisal in August 1988. The AJ held
that merely �supervising an EEO claimant, or potential claimant, is
not a protected activity.� Accordingly, the AJ was not persuaded that
complainant established a prima facie case of reprisal. See Hochstadt,
supra.
However, even assuming that complainant could establish a prima facie
case of reprisal with respect to his 1988 performance appraisal, the AJ
found that he failed to establish that the legitimate, nondiscriminatory
reasons articulated for his 1988 performance appraisal ratings were a
pretext for reprisal, noting that the 1988 appraisal was consistent with
DD-1's earlier appraisals of complainant's performance. Id.
With respect to this incident and all of the remaining incidents cited
by complainant, the AJ questioned whether he could establish a prima
facie case of discrimination based on his national origin, inasmuch as
complainant failed to establish that the relevant officials were aware
that he was one-quarter Native American. Assuming that complainant
could establish a prima facie case of discrimination based on his
national origin, the AJ again found no evidence that the legitimate,
nondiscriminatory reasons articulated for the appraisal were a pretext
for national origin discrimination. See McDonnell Douglas, supra.
While the AJ found that complainant could establish a prima facie case of
retaliation with respect to his 1989 performance appraisal, the AJ again
found that he failed to establish that the legitimate, nondiscriminatory
reasons articulated for his performance appraisal ratings were pretextual.
The AJ noted that complainant's appraisal ratings had in fact improved
from a rating of �Marginal� in 1986 (prior to E-1's placement in his
division or his own initial EEO activity) to �Exceeds Fully Successful�
in 1989, which was the highest rating ever achieved by complainant.
The AJ was unpersuaded that DD-1's hand written memorandum constituted
direct evidence of a retaliatory animus.<12> Instead, the AJ found
that complainant had in fact �repeatedly shown hostility to management's
necessary attempts to gather factual information on his supervision of
[E-1 because he was] extremely fearful of being sued by [E-1]� although
complainant was �under an obligation as a supervisor to provide factual
information to any investigation of E-1's various claims or charges.�
Again assuming that complainant could establish a prima facie case of
discrimination based on his national origin, the AJ found no evidence of
pretext, noting that the agency had provided a detailed explanation of the
reasons for SEE-1's higher ratings and resulting awards. Accordingly,
the AJ also found no discrimination or reprisal with respect to SI (l)
(SEE-1 received an Outstanding performance rating and a substantial
performance pay raise award, while complainant did not).
As for SI (d) (he was not selected for promotion to the position of
Supervisory Electronics Engineer, GM-14), the AJ found that one of
the panelists had learned of complainant's EEO activity at the time
of his interview, and that the Executive Director had learned of his
EEO activity at the time that he accepted the panel's recommendation
of another candidate. Accordingly, the AJ found that complainant
established a prima facie case of reprisal. The AJ found that, through
the testimony of various panelists, the agency had articulated legitimate,
nondiscriminatory reasons for its selection decision. As evidence of
pretext, complainant offered the testimony of a Subject Matter Expert,
who stated that he would have scored complainant two points higher
on one element. Noting that all of the applicants were scored in a
relatively short time under the same process, the AJ opined that had
�all the applicants ... been re-scored at the Subject Matter Expert's
leisure, it is possible that more of them would get higher scores, as
he would have had more time to discover additional information.� In
any event, an upward adjustment of two points in complainant's score
would not have made a difference inasmuch as he was included among
those candidates recommended for an interview. The AJ found that the
agency's Subject Matter Expert credibly testified as to the propriety
of the scores assigned to the candidates, and was not persuaded by
complainant's assertion (based on �his scoring of his own application
and withering scoring of the selectee�) that �his scoring should have
been so high that no interviews would have been conducted.� The AJ found
that complainant failed to establish that his non-selection constituted
reprisal or discrimination. See Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981).
Complainant argued that the criticism he had received regarding his
�Useful Work Vice Waste� memorandum constituted evidence of reprisal.
However, the AJ found that the �obvious thrust of the memorandum was that
[complainant] did not want [E-1] assigned to him� and that, while it
may have been acceptable for complainant to submit a memorandum to this
effect to his supervisors, �it was a matter of legitimate concern to his
supervisors that [complainant] first shared this memo with [E-1].� The AJ
found that agency officials were legitimately concerned by this action,
citing cases upholding management's need to function �with one voice'
and demand loyalty in situations involving management's relations with
non-management employees.<13> The AJ found that agency management,
in a proper exercise of its discretion, assigned E-1 to complainant's
division and that complainant feared supervising E-1 out of concern for
his personal legal liability.
The AJ determined that complainant misinterpreted or misrepresented
the advice and direction given to him in matters concerning E-1 as
reprimands and threats. Although summary judgment had been granted on
these points, the AJ discussed SI (b) (DD-1's advice regarding how to
complete the supervisor's section of the OWCP form was tantamount to a
reprimand for not contesting E-1's OWCP claim) and SI (c) (statements
made by the Attorney in April 1989 were intimidating and coercive)
as examples of complainant's misinterpretation or misrepresentation
of management's actions. The AJ held that the Attorney acted properly
in seeking a meeting with complainant, in his role as E-1's supervisor,
prior to E-1's upcoming EEO hearing. Thus, the AJ found that the Attorney
gave complainant legitimate advice when she stated that he was �shooting
himself in the foot� by refusing to meet with her, in the sense that he
was �engaging in a self-defeating effort� as she could (and did) merely
request the Captain to order him to meet with her. Consequently, the
AJ was not persuaded by complainant's characterization of the Attorney's
actions or comments as retaliatory, intimidating or coercive. Finally,
the AJ was not persuaded that DD-1's memorandum or the Attorney's
statements constituted direct evidence of discrimination or reprisal.
While E-1 testified on complainant's behalf that higher-level supervisors
stated that complainant stood �in the way� of their desire to terminate
E-1, the AJ found it �clear� that E-1 �had a strong bias against the
agency� and testified in an �evasive and theatrical manner� to the extent
that the AJ declined to �credit any of his testimony.�
Noting that the Commission had issued decisions upholding the agency's
instructions to complainant that he must seek EEO counseling to raise
new claims of discrimination, the AJ found that complainant failed to
establish a prima facie case of discrimination or retaliation regarding SI
(h) (the DEEOO issued a memorandum which complainant contended wrongfully
remanded one of his EEO complaints for further informal counseling).
As for SI (i) (DD-1 allegedly verbally threatened him in August 1989
with a legal suit for statements he made in amendments to one of his
EEO complaints), the AJ was again not persuaded that complainant was
threatened or admonished, particularly in light of �a number of concerns
raised by [complainant's] behavior in filing his EEO complaints� including
his repeated filings of �amendments� despite the Commission's directions
to him, his refusal to cooperate with the EEO office in all matters
concerning counseling (including making appointments and allowing attempts
at informal resolution), and the �overheated and venomous rhetoric� of
the language used by complainant to state his contentions. The AJ noted
that while �it is plainly a delicate matter to separate out protected from
the non-protected conduct,� a complainant's �deportment [is not insulated]
from adverse scrutiny ... insofar as it went beyond the pale of reasonable
opposition activity.� Hochstadt, supra at 229. The AJ found that DD-1
did not attempt to restrain complainant from filing complaints and noted
that the agency processed the complaints even after complainant persisted
in filing �amendments� and was uncooperative with the EEO officials.
The AJ ruled that DD-1's statements did not constitute direct evidence
of reprisal, finding that DD-1 �merely advised [complainant] to tone down
... his rhetoric� and did not �cross[] the line in trying to separate out
the protected from the unprotected activity.� Insofar as complainant
claimed that the EEO Office and various officials breached his right
to confidentiality, the AJ found that his conduct caused the breaches.
Consequently, the AJ found that complainant failed to establish a prima
facie case of discrimination or reprisal.
With respect to SI (n) (the Attorney allegedly passed a sexually coercive
note to complainant's attorney), the AJ found that complainant failed
to establish any credible nexus between the agency and the note since
there was no evidence that the note originated at the agency and not
from within his attorney's own office.
As a final matter, the AJ noted that, based on their demeanor as well as
the internal consistency of their own testimony and other documentary
support of such testimony, he found the agency's witnesses credible.
In contrast, the AJ found that complainant's �personal unprovoked attacks
on various participants in the hearing, ... exaggerations, and distortions
ultimately detracted from [his] credibility and the value� which otherwise
might have attached to his many uncorroborated statements.
In its FAD, the agency adopted the RD. On February 23, 1996, complainant
timely appealed. In his 276-page appeal brief, complainant primarily
presented the same contentions set forth in the closing arguments
submitted to the AJ. Complainant also asserted that the AJ: (1) held
him to standards exceeding those which required for pro se parties
under the Federal Rules of Civil Procedure; (2) essentially copied the
agency's closing statement into the RD; (3) made factual misstatements;
(4) failed to follow the District Court's order; (5) erred in granting
summary judgment; (6) denied him a fair hearing; (7) erred in not finding
E-1's testimony worthy of weight and credence; (8) erred in various
rulings with respect to discovery, the introduction of evidence and
the presentation of witnesses; (9) erred in finding that the agency's
witnesses were credible; (10) erred in failing to hold that complainant
produced direct evidence of discrimination (including DD-1's memorandum
(see n. 10 supra)); and (11) misinterpreted and misapplied the law.
Apparently interpreting the District Court's Order as requiring him to
file an appeal with this Commission, complainant also protested being
compelled to exhaust the administrative process.
In its decision on the appeal, the Commission stated that the agency
had failed to submit a complete record, including copies of the formal
complaints, EEO Counselors' reports, report of investigation, hearing
transcripts and exhibits, even after being requested to do so. The
Commission further stated that, "in his notice of appeal, the complainant
states that he did not receive copies of the hearing transcripts and is
therefore unable to prepare and file a brief in support of his appeal."
Because, absent the complaint file, the Commission was unable to
adjudicate the appeal, the Commission vacated the FAD and ordered the
agency to prepare and submit a complete complaint file, including an
index, to provide complainant with a copy of the index and exhibits,
and to then issue a new FAD.
Both complainant and the agency filed a request to reopen the previous
Commission decision. In his request to reopen, complainant protests that
the prior decision "turns the clock back" more than two years, provides
the agency with the opportunity to create a new case file and places an
undue burden on him to respond to yet another FAD. Complainant notes that
nowhere in his appeal did he state that he had not received a copy of
the hearing transcripts and asserts that the prior decision erroneously
implies that he had not submitted a brief on appeal. Complainant argues
that his 276-page appeal brief, together with its 288 pages of exhibits,
contain overwhelming argument and evidence, including direct evidence,
in his favor.
In its request to reopen, the agency asserts that any failure to produce
the record was inadvertent. The agency submits a copy of a cover letter
to the Commission, dated March 25, 1996, which states that "enclosed [is]
the discrimination complaint case record of [complainant] and [the agency]
certif[ies] that it is complete," together with a certified return receipt
card evidencing the Commission's receipt of the transmittal.<14> The
agency states that "a recent search of [its] files managed to locate
a portion of the records, the hearing transcript and exhibits from
the hearing." The agency notes that, inasmuch as complainant will
clearly appeal a new FAD (which presumably would again adopt the RD),
the prior decision only serves to prolong the processing time and the
agency joins in complainant's arguments for issuance of a Commission
decision on the merits.
ANALYSIS AND FINDINGS
The Commission first notes for the record that the file before it
contains the following specified material, as well as a large amount of
other miscellaneous material not specifically noted: (1) the Report of
Investigation, including the complaints and an index to the accompanying
four volumes of Exhibits (Exhibits 1 - 128); (2) complainant's Rebuttal
to the Report of Investigation (including 58 attachments, with an index);
(3) all ten volumes of the Hearing Transcript; (4) a volume labeled AJ's
Exhibits (1 - 16); (5) a volume labeled Complainant's Exhibits (1 - 49);
(6) a volume labeled Agency's Exhibits (1 - 23); (7) the agency's Motion
for Summary Judgment; (8) complainant's written Closing Argument submitted
to the AJ (107 pages); (9) the agency's written Closing Statement;
(10) the RD; (11) the FAD; (12) the appeal, including complainant's
initial statement and his 276-page brief and 288 pages of exhibits; (13)
complainant's civil complaint filed in District Court; (14) the decision
issued by the District Court; (15) complainant's brief filed with the
United States Court of Appeals (9th Cir.); and (16) the undated decision
issued by the Ninth Circuit (affirming the District Court's dismissal
of his civil suit for failure to exhaust his administrative remedies and
the dismissal of his constitutional and state-law tort claims against his
supervisors and coworkers as precluded by the Civil Service Remedies Act).
Accordingly, the Commission finds that the record is complete and hereby
GRANTS the Requests to Reopen the prior decision.
The Commission next notes that its regulations confer broad discretion on
Administrative Judges in the conduct of hearings. 64 Fed. Reg. 37,644,
37,657 (1999)(to be codified and hereinafter referred to as EEOC
Regulation 29 C.F.R. � 1614.109(e)). After a careful review of the
hearing transcript, the Commission finds that the AJ correctly determined
that complainant repeatedly engaged in contumacious conduct, including
cursing the AJ when dissatisfied with the orders issued by him and
impugning his character, showing disrespect for the agency's attorneys,
and making personal and unprovoked attacks on participants in the hearing.
Given the foregoing, it is highly unlikely that the Commission would have
found an abuse of discretion had the AJ chosen to terminate the hearing
and to remand the case to the agency for the issuance of a FAD without
a hearing. See Bradley v. United States Postal Service; EEOC Appeal
Nos. 01952244 (September 18, 1996) and 01963827 (September 18, 1996). The
Commission notes that complainant repeatedly invoked the decision issued
by the District Court which ordered the agency to permit complainant to
exhaust his administrative remedies by conducting a full investigation and
a review of the merits of his claims. However, the Commission does not
believe that the District Court had any intent of condoning contumacious
conduct before an Administrative Judge or insulating complainant from
the consequences of such conduct. Accordingly, while the Commission
finds commendable the patience exhibited by the AJ in this matter, the
Commission advises complainants not to anticipate that such conduct will
be tolerated. The Commission further finds that the AJ did not abuse
his discretion by denying complainant's requests that this matter be
reassigned to another Administrative Judge.
Finally, after a thorough review of the record, the Commission finds
that the RD adequately set forth the relevant facts and analyzed the
appropriate regulations, policies and laws.<15> Pursuant to 64 Fed. Reg
37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405(a)), all
post-hearing factual findings by an AJ will be upheld if supported by
substantial evidence in the record. Substantial evidence is defined
as �such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.� Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).
A finding regarding whether or not discriminatory intent existed is a
factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293
(1982). The Commission notes that a lengthy hearing was conducted and
the AJ was required to weigh and assess the credibility of a number of
witnesses in determining the ultimate question of whether complainant
was subjected to discrimination or reprisal. The Commission finds no
reason to disturb the AJ's finding that complainant failed to establish
discrimination or reprisal.
In so finding, the Commission first notes that the AJ properly determined
that complainant could not prevail on his claim of national origin or
disability discrimination inasmuch as he failed to establish either
that relevant officials were aware of his Native American heritage or
that he was an individual with a disability as defined in the applicable
regulations.
Insofar as complainant essentially alleges that he was a victim of
discriminatory terms and conditions of employment in that he was
subjected to harassment in retaliation for protected EEO activity, we
note that harassment of an employee that would not occur but for the
employee's participation in protected EEO activity is unlawful if it is
sufficiently patterned or pervasive. See, e.g., McKinney v. Dole, 765
F.2d 1129, 1138-39 (D.C. Cir. 1985); see also deLange v. Department of
State, EEOC Request No. 05940405 (March 3, 1995). That is, the agency
actions at issue must be both sufficiently pervasive and directed at
the employee because of his or her membership in a protected class.
After a careful review of the record, the Commission finds that the
AJ properly determined that complainant failed to establish that the
complained of actions would not have been taken but for his participation
in protected EEO activity. With respect to a number of the challenged
agency actions (e.g. SI (b), (c), (f), (i), and (n)), the AJ's finding
that complainant's version of the events in question constituted a
misinterpretation or misrepresentation of the agency's actions is
supported by substantial evidence of record. With respect to other
challenged agency actions (e.g. SI (a), (d) and (l)), the agency
articulated legitimate nondiscriminatory reasons for such actions and
complainant failed to prove that these reasons were pretextual. Thus,
having failed to establish that such actions either occurred as alleged
or were taken on the basis of his membership in a protected class,
complainant failed to establish that he was subjected to prohibited
harassment. See Applewhite v. Equal Employment Opportunity Commission,
EEOC Appeal No. 01994939 (April 6, 2000); Wolf v. United States Postal
Service, EEOC Appeal No. 01961559 (July 23, 1998); EEOC Guidance on
Investigating, Analyzing Retaliation Claims, No. 915.003 (May 20, 1998).
In addition, insofar as certain of the incidents challenged by complainant
concern the processing of his underlying EEO complaints (e.g. SI (e),
(g), (h) and (j)), the AJ's findings that the delays in processing
primarily were attributable to complainant's lack of cooperation (see
n. 7 supra) and that the other challenged agency actions were in fact in
accordance with 29 C.F.R. Part 1614, are supported by substantial evidence
of record. Accordingly, there was no need for the AJ to consider whether
the challenged agency actions had any material effect on the processing
of this matter. See EEOC Management Directive 110, Ch. 5, Sec. IV.D.
Therefore, it is the decision of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case <16> 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(b); 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:
_____________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 19, 2000
_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________________
Equal Employment Assistant
_______________
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.
2 In his complaint, complainant had listed his national origin as German,
French and Native American, but at the hearing, he based his claim of
national origin discrimination solely on his Native American heritage.
Complainant also withdrew age as a basis at the hearing.
3 See, e.g., MSPB Docket Nos. SF07528810191 (April 13, 1988);
SF07529810525 (July 31, 1989); SF07528910526 (July 31, 1989);
SF075288C0191 (August 11, 1989).
4 Presumably, complainant intended to title this memorandum "Useful Work
Versus Waste."
5 See EEOC Appeal No. 01893799 (December 8, 1989). The Commission
affirmed the agency's rejection of certain matters on the basis that
complainant had not timely sought EEO counseling; however, other matters
were remanded back to the agency for further processing.
6 While numerous examples could be cited, the Commission will note here
only that complainant described an official as having a �predisposition
to depression, alcoholism and suicidal tendencies� and otherwise accused
various officials of engaging in unethical and illegal behaviors.
7 The AJ noted that complainant �demonstrated a lack of cooperation�
with various persons during the processing of his complaint, including
cursing at and otherwise engaging in contemptuous behavior before the
AJ and refusing to cooperate with the first EEO Investigator assigned
to the extent that the investigator resigned from the investigation
and returned the file. The AJ found that most of the delays in
processing complainant's complaint were attributable to his lack of
cooperation although the backlog in the applicable agency EEO Office
was a contributing factor.
8 The Letter of Reprimand eventually was purged from complainant's
Official Personnel File, and this Commission previously upheld the
agency's dismissal of a claim concerning its issuance. See EEOC Request
No. 05910583 (February 26, 1992).
9 The District Court dismissed complainant's complaint pursuant to its
Order that the agency reinstate his instant complaint for investigation
and a review of the merits.
10 The AJ did not, however, grant summary judgment on SI (h) (the DEEOO
issued a memorandum which he contended wrongfully remanded one of his
EEO complaints for further informal counseling) apparently because this
memorandum was issued prior to the Commission's issuance of its decision
in EEOC Appeal No. 01893799.
11 Complainant conceded that his impairment did not interfere with any
major life activity. See, e.g., Complainant's Closing Argument at 3.
12 As noted supra, this memorandum advised complainant that he could
improve his performance if he would �create the perception that
[he] trust[s] the motivation of management,� and cited complainant's
performance during a meeting with the CO which gave the impression
that complainant �may be a �hostile witness' in any forthcoming [E-1]
hearings.�
13 See, e.g., Brown v. Department of Transportation, F.A.A., 735 F.2d 543
(Fed. Cir. 1984).
14 The Commission notes that the record now before it also includes a
facsimile from the agency, dated August 19, 1996, stating "Everything
was sent to you. We have nothing here." Another agency letter, dated
June 24, 1998, also certifies to the transmission of another complete
copy of the record.
15 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
16 This is the first Commission decision addressing the merits of this
matter.