0120070598
02-11-2009
David E. Knight, Complainant, v. Pete Geren, Secretary, Department of the Army (Army National Guard Bureau), Agency.
David E. Knight,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army
(Army National Guard Bureau),
Agency.
Appeal No. 0120070598
Hearing No. 440-2007-00008X
Agency No. T140ILA0100O
DECISION
On November 9, 2006, complainant filed an appeal from a final order of
the agency1 concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a temporary Small Arms Repairer at the agency's North Riverside, Illinois
facility. On October 1, 1999, complainant filed an EEO complaint alleging
that he was discriminated against on the basis of reprisal for prior
protected EEO activity when, in or about March 1999, he was terminated
from his position after declining a management directed reassignment.
The record reflects an unexplained lapse of some six years in the
processing of this case, a circumstance noted by the AJ at the time of
the hearing. However, once complainant was provided with a copy of the
report of investigation and notice of his right to request a hearing
before an EEOC AJ, he did so in a timely fashion. The AJ held a hearing
on May 21 and 22, 2007 and issued a decision on June 4, 2007.
In his decision, the AJ found that although complainant alleged he
was reassigned and then terminated because of his support of another
co-worker's EEO complaint, he had failed to prove his case. The AJ
found the preponderance of the evidence revealed the agency decided
to reassign complainant to work in the auto section because there
was a need to prepare National Guard vehicles for annual training,
and complainant had been identified as a qualified temporary indefinite
employee. When complainant was advised of the reassignment, he was told
that declining the reassignment could lead to termination. Although
complainant presented evidence of some downsides to the reassignment,
there was no loss in pay. Accordingly, the AJ found complainant failed
to establish he had suffered an adverse action, and thus, failed to
establish an inference of retaliation.
The AJ further found that complainant failed to prove the agency's
reasons for the reassignment were a pretext for retaliation. The AJ found
the preponderance of the evidence established complainant was selected
in order to help the backlog in the auto section, and because of his
status as a temporary employee. Although complainant argued that the
auto section had plenty of idle employees, the AJ was not persuaded by
his testimony. The AJ also found no evidence that any of the management
officials involved harbored any retaliatory motive against complainant.
On July 23, 2007, the agency issued a final order adopting the AJ's
finding that complainant failed to prove that he was subjected to
discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates several arguments about the backlog in
the auto section which he raised, but failed to prove, at the hearing.
Complainant further argues that his supervisor told him to stop his
support of his co-worker's complaint.
ANALYSIS AND FINDINGS
Pursuant to 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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
As an initial matter, we disagree with the AJ's analyses as to whether the
reassignment constituted an adverse action necessary to establish for a
prima facie case. The Commission has stated that adverse actions need not
qualify as "ultimate employment actions" or materially affect the terms
and conditions of employment to constitute retaliation. See Burlington
Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct,
2405 (2006) (finding that the anti-retaliation provision protects
individuals from a retaliatory action that a reasonable person would
have found "materially adverse," which in the retaliation context means
that the action might have deterred a reasonable person from opposing
discrimination or participating in the EEOC charge process); see also
Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4,
1999)(citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead,
the statutory retaliation clauses prohibit any adverse treatment that
is based upon a retaliatory motive and is reasonably likely to deter
complainant or others from engaging in protected activity. Id.
However, this matter is not determinative because we find the
AJ's remaining findings are supported by substantial evidence.
The preponderance of the evidence in the record reveals the agency
reassigned complainant because of its upcoming training needs, and not
because of retaliation. Complainant's failure to accept the position
resulted in his termination, which he knew could happen. Further,
complainant's contentions on appeal are not supported by the testimony
and statements in the record. Complainant argues that his supervisor
threatened him with termination if he didn't stop helping the co-worker
with her harassment issues. However, complainant's supervisor testified
that he was referring to complainant's consistent tardiness, and not
his support of her EEO issues. Complainant's tardiness was not shown to
be associated with any meetings with an EEO Counselor or Investigator.
Complainant failed to provide persuasive evidence that would dispute
this testimony. Furthermore, complainant failed to present sufficient
evidence that the agency's reasons for his reassignment and subsequent
termination lacked credibility or were a pretext for retaliation. We find
there is substantial evidence in the record to support the AJ's findings.
CONCLUSION
We AFFIRM the agency's final action finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 11, 2009
Date
1 The record reveals that complainant initially appealed from an agency
final decision dated October 2, 2006. As best may be discerned, that
decision was issued in error, as the case was already pending before an
EEOC Administrative Judge (AJ). The case was heard by the AJ on June 4,
2007, and the agency issued a second final decision fully implementing
the AJ's finding no discrimination on July 23, 2007. Accordingly,
this appeal is now ripe for disposition.
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0120070598
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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