Alton W. Bennett, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 19, 2000
05980746 (E.E.O.C. Sep. 19, 2000)

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.