0120061548
02-05-2008
Anthony D. Crump, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Anthony D. Crump,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200615481
Hearing No. 100-2005-00183X
Agency No. AREUBEL04JAN001
DECISION
Complainant filed an appeal with this Commission from the December 2,
2005 agency decision which implemented the November 14, 2005 decision
of the EEOC Administrative Judge (AJ) finding no discrimination.
Complainant, a grade level GS-09 Telecommunications Specialist, alleged
that the agency discriminated against him on the basis of reprisal for
prior EEO activity when:
1. On October 31, 2003, complainant received his performance rating
from his supervisor and he refused to sign the performance rating because
he believed it was inaccurate and unfair. Complainant was subsequently
placed on administrative leave.
2. On December 10, 2003, complainant was informed that he was
unable to adjust to overseas employment and he would be returned to the
Continental United States (CONUS).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing. Complainant timely requested a hearing. Over the objection
of complainant, the AJ issued a decision without a hearing (summary
judgment).
BACKGROUND
In August 2002, complainant transferred to the 39th Signal Battalion in
Brussels from Little Rock Air Force Base in Arkansas.
In a letter dated April 2, 2003, complainant wrote to his Congressman
alleging incompetence, corruption, abuse, waste, fraud, favoritism,
nepotism, and discriminatory treatment toward Black employees.
Complainant also stated that management took credit for accomplishments
of employees.
On October 31, 2003, complainant met with his supervisor for his annual
performance review and received an evaluation rating of "Successful."
Complainant disagreed with the evaluation and refused to sign it.
The conversation between complainant and his supervisor resulted in
the supervisor reporting the incident to the military police and the
installation's Commander. Complainant was placed on administrative leave
following the incident. In November 2003, complainant was directed to
report to Chievres, Belgium on a temporary assignment.
On December 10, 2003, the LTC issued complainant a Memorandum informing
complainant of the LTC's decision to initiate complainant's early
return to CONUS through a management directed exercise of complainant's
reemployment rights as a result of complainant's failure to adjust to
the overseas environment. The Memorandum also informed complainant that
he had return rights to a position at the 314th Communications Squadron
Air Force Base in Arkansas at the same grade level and series.
Complainant returned to Arkansas in April 2004, following his temporary
assignment in Chievres.
DECISION OF THE AJ
Claim 1
Regarding claim 1 in her decision finding no discrimination, the AJ
concluded that complainant failed to establish a prima facie case of
reprisal, noting the complainant failed to show that his supervisor
was aware of his prior EEO activity and also noting that the record
reflected that management had documented concerns regarding complainant's
performance before complainant contacted his Congressman. The AJ also
noted that complainant's supervisor stated that he had no knowledge
that complainant had contacted his Congressman until October 31, 2003,
when complainant refused to sign his performance rating.
The AJ further concluded that even assuming that complainant had
established a prima facie case of reprisal regarding claim 1, the agency
had articulated a legitimate, nondiscriminatory reason for the rating
given to complainant and that complainant had failed to show that the
agency's reasons were pretext to mask unlawful discrimination. The AJ
noted that complainant's supervisor stated that complainant was given a
"Successful" rating because of his disruptive behavior toward managers,
peers, and co-workers; that on more than one occasion, complainant failed
to follow the chain of command and to follow established procedures; and
that there were incidents in which complainant behaved in a belligerent
and inappropriate manner. The AJ also noted that the Acting Director of
the NSC stated that he reviewed complainant's evaluation and concurred
with complainant's rating. The AJ noted that the Acting Director of the
NSC believed that the rating was fair and accurate based on his personal
knowledge of complainant's work performance. The AJ also noted that the
Acting Director of the NSC stated that complainant had been counseled
by his supervisor regarding work-related matters; that complainant had
problems with authority; and that complainant showed little respect for
the chain of command and for following office procedures. The AJ also
noted that the Acting Director of the NSC stated that he had received
multiple complaints from employees about complainant's disruptive behavior
and demeaning comments towards them.
The AJ noted that complainant's supervisor stated that complainant
was placed on administrative leave because during the October 31, 2003
meeting, complainant directed verbal threats towards him and inflicted
bodily harm.
Regarding pretext, the AJ noted that although complainant denied that he
exhibited inappropriate conduct, the AJ further noted that the record
showed that on multiple occasions, complainant behaved inappropriately
and aggressively at work and that on several occasions complainant had
become upset and loud, yelling at managers. The AJ noted that other
witnesses supported statements of complainant's supervisor regarding
complainant's behavior.
Claim 2
Regarding claim 2, the AJ concluded that complainant had established a
prima facie case of reprisal, noting that complainant was returned to
the CONUS after writing to his Congressman and, further, that managers
involved in the transfer action were aware that complainant had engaged
in protected activity. The AJ noted that the Executive Officer for the
39th Signal Battalion stated that he knew of complainant's Congressional
contact before he made the decision to return complainant to his prior
position in Arkansas. The AJ also concluded that a causal connection
existed between the EEO activity and the adverse action.
The AJ further concluded that the agency had articulated legitimate,
nondiscriminatory reasons for returning complainant to the CONUS.
The AJ noted that the Executive Officer stated that his directive to
return complainant to Arkansas resulted after his review of complainant's
disruptive actions in the workplace and the corrosive effect complainant's
behavior was having on management's authority and on workplace morale.
The AJ also noted that that the Executive Officer became convinced
that complainant needed to be transferred out of Brussels after the
October 31, 2003 incident. The AJ noted that the LTC concurred with the
Executive Officer's recommendation to transfer complainant and accepted
the Executive Officer's recommendation based on complainant's behavior
and his pattern of disruptiveness.
The AJ concluded further that complainant failed to show that the
agency's reasons for returning him to CONUS were pretextual, indicating
that complainant failed to offer any evidence other than uncorroborated
conclusory assertions and noting that conclusionary statements were
insufficient to defeat summary judgment which weeds out insufficiently
meritorious claims. The AJ found that the record contained ample evidence
of complainant's failure to effectively perform his duties because of
his inappropriate and belligerent conduct.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding a
hearing unless the AJ ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) complainant engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
complainant was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. Although
the initial inquiry in a discrimination case usually focuses on whether
complainant has established a prima facie case, the prima facie inquiry
may be dispensed with when the agency has articulated a legitimate,
nondiscriminatory reason for its actions. In such cases, the inquiry
shifts from whether complainant has established a prima facie case and
proceeds to the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990).
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the decision is subject to a de
novo review by the Commission. See 29 C.F.R. � 1614.405(a).
Upon review, the Commission finds that the AJ's grant of summary judgment
was proper because there exists no genuine issue of material fact.
Assuming, without deciding, that complainant has established a prima
facie case on both claims, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency has
established that complainant was given a "Successful" rating because of
his conduct in the workplace and the effect his conduct was having on
management's authority and morale. Complainant has not shown that the
agency's reasons were mere pretext to hide unlawful reprisal. The record
establishes that complainant was counseled about his conduct prior
to his writing to his Congressman, prior to receiving his performance
evaluation, and prior to management's decision to return complainant to
CONUS. The record demonstrates that management recognized complainant's
value as a technical employee but that management had difficulties with
complainant because of his non-cooperative attitude and his insistence
on doing things his way. Accordingly, when reviewed as a whole, the
record does not demonstrate that management's actions were the result of
prohibited discrimination. Even construing the evidence in the light most
favorable to complainant, complainant has not shown by a preponderance
of the evidence that the agency was motivated by discriminatory animus
towards him. At all times, the ultimate burden of persuasion remains
with complainant to demonstrate by a preponderance of the evidence
that the agency's reasons were pretextual or motivated by intentional
discrimination. Complainant has failed to carry this burden.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 5, 2008
__________________
Date
1 Due to a new data system, this matter has been re-designated with the
above-referenced appeal number.
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0120061548
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036