Charles A. Gulden, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 14, 2000
05a01197 (E.E.O.C. Dec. 14, 2000)

05a01197

12-14-2000

Charles A. Gulden, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Charles A. Gulden v. Department of the Army

05A01197

12-14-00

.

Charles A. Gulden,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Request No. 05A01197

Appeal No. 01A01697

Agency No. EUR98-AR-0130-E

Hearing No. 100-99-7161X

DECISION ON REQUEST FOR RECONSIDERATION

Complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Charles

A. Gulden v. Louis Caldera, Secretary, Department of the Army, EEOC

Appeal No. 01A01697 (July 13, 2000).<1> EEOC regulations provide that

the Commission may, in the exercise of its discretion, grant a request

for reconsideration if the party making the request demonstrates that

the appellate decision involved a clearly erroneous interpretation of

material fact or law, or that the decision will have a substantial

impact on the policies, practices, and operations of the agency. 29

C.F.R. � 1614.405(b).

Complainant filed a complaint in which he claimed that the agency

retaliated against him for participating in the processing of an EEO

complaint filed by a female co-worker. He identified the following

incidents as evidence of reprisal:

On an unspecified date, complainant's first-line supervisor (S1) allegedly

made arbitrary changes to his job description, which resulted in his

position remaining at GS-13; and

On July 17, 1997, S1 withheld a monetary performance award from

complainant.

The agency investigated the complaint and referred the matter to an

administrative judge (AJ), who held a hearing and issued a decision

finding no discrimination. The agency adopted the AJ's decision as its

final action, and the previous decision summarily affirmed.

Complainant challenges the AJ's determination that the preponderance of

the evidence does not support a finding of reprisal with respect to the

position description incident.<2> The AJ found that, while complainant

established a prima facie case of reprisal, he failed to show that the

agency's articulated reason for making changes to complainant's position

description was a pretext for a retaliatory motivation on the part of S1.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings

by an administrative judge 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). A finding regarding whether or not retaliatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

To prevail on his reprisal claim, complainant must satisfy the three-part

evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). He must initially establish a

prima facie of reprisal by showing: (1) that he engaged in protected

EEO activity; (2) that the agency was aware of that activity; and (3)

that he was subjected to an adverse action at such a time or in such

a manner as to support a causal connection between the two events.

Frye v. Department of Labor, EEOC Request No. 05940764 (December 15,

1994). The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,

complainant must prove, by a preponderance of the evidence, that the

agency's explanation is pretextual. St. Mary's Honor Center v. Hicks,

509 U.S. 502, 519 (1993). In this case, neither party contests the

AJ's findings that complainant established a prima facie case and that

the agency articulated a legitimate, nondiscriminatory reason for S1

making changes to complainant's position description. Our inquiry will

therefore focus only on whether the AJ's finding, that complainant failed

to establish pretext, is supported by substantial evidence of record.

See United States Postal Service Board of Governors v. Aikens, 460

U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997).

Complainant held the position of Morale, Welfare, and Recreation

(MWR) Manager, GS-13 at a U.S. military installation in England.

In February of 1997, he submitted paperwork to S1 to have the MWR

Manager position upgraded to GS-14. S1, in turn, submitted the

documents to his own immediate supervisor, S2, who was complainant's

second-line supervisor. S2 reviewed the paperwork and returned it

to S1 with instructions to revise the position description so that it

more accurately reflected the duties and supervisory responsibilities

of the position. Hearing Transcript (HT) 324. S2 indicated that he

reviewed the job description several times, and that he thought that

it identified supervisory responsibilities that were beyond the scope

of the MWR Manager. Investigative Report (IR) 60. S1 then returned the

paperwork to complainant for revision in accordance with S2's directions,

and to submit it directly to the personnel office. HT 324-25.

After complainant forwarded the reclassification application to the

personnel office, S1 received a telephone call from personnel specialist

W indicating the job description was not correct. HT 363. S1 met with

W and her supervisors E and B at the personnel office to discuss their

concerns. S1 testified that language describing the position as that of

the assistant director was inaccurate, and that a flow chart describing

the MWR Manager's line of authority was not correct. IR 108, 137; HT

325-27, 331. Since W would be out of the office for the next two weeks,

S1 immediately made the corrections and gave the corrected documents

to W, so that she could forward them to the classification specialists.

S1 signed the form for S2, as he normally did when S2 was unavailable. HT

327-28.

In finding that complainant failed to establish pretext, the AJ credited

the hearing testimony of S1 and E. W did not testify at the hearing,

but provided two written statements to the EEO investigator that were

neither signed nor sworn. In one of her statements, W indicated that

S1 called her requesting that she return complainant's reclassification

paperwork to him for corrections. IR 69. This conflicts with the hearing

testimony of S1 and E that it was the personnel office that initially

contacted S1 about discrepancies in that paperwork. In his request for

reconsideration, complainant argues that the AJ erroneously excluded

W's affidavits without first determining whether they were repetitious

or cumulative. On page (7) of her bench decision, the AJ stated:

�I note, however, that both affidavits by W in the investigative report

are not signed by her and that she was not called as a witness to testify

at the hearing. Accordingly, I do not give much weight to her unsigned

statements.�

Complainant completely mischaracterizes the AJ's treatment of W's

statements. Contrary to what complainant claims, the AJ did not exclude

those statements. Rather, she considered them in conjunction with

the hearing testimony of S1 and E, and credited them accordingly. What

complainant appears to be arguing is that the AJ abused her discretion in

crediting the statements of S1 and E, but not those of W. We disagree.

Credibility determinations of an administrative judge are entitled to

great weight. Universal Camera Corporation v. National Labor Relations

Board, 340 U.S. 474, 496 (1951); Embree v. Veterans Administration,

EEOC Request No. 05901054 (November 15, 1990). Complainant attempted to

undermine S1's credibility at the hearing by pointing out the conflict

between his testimony and W's affidavits regarding who first called

whom. Complainant acknowledged, however, that he could not explain

why W neither signed nor initialed her two affidavits. HT 359-62.

Moreover, W emphasized that, while S1 managed the situation poorly by

not informing complainant of the changes that he made to the position

description pursuant to instructions from the personnel office, the

reclassification application itself was processed correctly. IR 69-70.

In view of complainant's failure to discredit S1's testimony at the

hearing, and the corroboration of S1's testimony by E, we find no reason

to disturb the AJ's decision that complainant failed to prove his claim

of reprisal.

After reviewing the record in its entirety, we find that complainant's

request does not satisfy either criterion for reconsideration, and

accordingly, the request is denied. The decision of the Commission

in EEOC Appeal No. 01A01697 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

_12-14-00________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On 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 29 C.F.R. Part 1614 in deciding the present

appeal. The regulations, as amended, may also be found at the Commission's

website at www.eeoc.gov.

2In his reconsideration request, complainant does not contest the AJ's

findings and conclusions with respect to the withholding of the cash

award in July 1997.