Erich E. Lachmann, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Investigative Service),) Agency.

Equal Employment Opportunity CommissionSep 2, 1999
01975804 (E.E.O.C. Sep. 2, 1999)

01975804

09-02-1999

Erich E. Lachmann, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Investigative Service),) Agency.


Erich E. Lachmann, )

Appellant, )

) Appeal No. 01975804

v. ) Agency Nos. DIS-90-170-14-R

) DIS-91-106-14-R

William S. Cohen, ) Hearing Nos. 170-96-8113X

Secretary, ) 170-96-8114X

Department of Defense, )

(Defense Investigative Service),)

Agency. )

)

DECISION

Appellant timely initiated an appeal from a final agency decision (FAD)

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the basis of reprisal (prior EEO activity),

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. The appeal is accepted in accordance with

EEOC Order No. 960.001. For the following reasons, the agency's decision

is AFFIRMED.

The record reveals that appellant, formerly a GS-1810-11 Special

Investigator at the agency's Newark, New Jersey facility, filed formal

EEO complaints with the agency on November 15, 1990 (re-filed January

11, 1991), and August 15, 1991. At the conclusion of the agency's

investigations, appellant requested a hearing before an Administrative

Judge (AJ) of the Equal Employment Opportunity Commission (EEOC or

Commission). Subsequently, appellant requested a hearing before the

Merit Systems Protection Board, which declined jurisdiction over his

complaints. Thereafter, the agency issued a FAD without a hearing,

which appellant appealed. The Commission concluded that due to the

procedural irregularities in the handling of appellant's complaint, he

should have been entitled to a hearing, as he had requested, before an

EEOC AJ, and the FAD was vacated for remanded for a hearing. See Lachmann

v. Department of Defense, EEOC Appeal No. 01944327 (November 22, 1995).

Appellant's complaints were consolidated for a single hearing, which

was conducted by a Supervisory AJ from the Commission's Philadelphia

District Office on February 4, 11, 18, and 19, 1997. At the conclusion

of the hearing, the AJ issued her Recommended Decision (RD) via telephone

conference call on March 21, 1997, finding no discrimination. In her RD,

the AJ first identified some of appellant's allegations (see RD at pages

3 and 4), and then set forth the issues as follows:

whether appellant was retaliated against for prior EEO activity when he

was charged with two hours of Absence Without Leave (AWOL) for September

24, 1991;

whether appellant was retaliated against for prior EEO activity when

he was issued a letter of proposed removal March 6, 1991, reduced to a

two-week suspension June 11, 1991; and

whether appellant was constructively discharged in retaliation for his

prior EEO activity when he resigned August 26, 1991.<1>

See RD at page 28. Concerning issue (1), the AJ concluded that appellant

failed to establish a prima facie case of retaliation, noting that the

official responsible for charging appellant with AWOL did not become

aware of appellant's prior EEO activity until after he had charged

appellant with AWOL. The AJ then concluded that even if appellant had

established a prima facie case, the agency articulated a legitimate,

nondiscriminatory reason for charging appellant with AWOL, namely, that

appellant's explanations did not adequately account for his activities

on September 24, 1990. Having presented no evidence that the agency's

reasons were pretextual, the AJ thus concluded that appellant was not

a victim of retaliation when he was charged with two hours of AWOL.

Concerning issue (2), the AJ found that appellant established a prima

facie case of retaliation, and then concluded that the agency articulated

a legitimate, nondiscriminatory reason for its actions. Specifically, the

agency cited several instances of unacceptable behavior which include, but

are not limited to: failure to comply with direct orders, falsification of

a report of investigation, making false statements, falsifying workload

and time reports, neglect of duty, and insubordination. See the agency's

letter of proposed removal in its Supplemental Investigation at exhibit 4.

After consulting with its headquarters, the agency drafted a letter of

proposed removal. Id. Subsequently, appellant admitted to, and attempted

to explain his having engaged in, some of the various behaviors cited in

the letter of proposed removal. The agency official charged with acting

on the proposal instead decided to recommend reducing the removal to a

two-week suspension. The agency adopted this recommendation. The AJ then

found that other than appellant's attempts to justify his actions, and

his unsupported allegations against certain agency management officials,

he presented no credible evidence that the removal notice or subsequent

suspension was motivated by retaliatory animus.

Concerning issue (3), the AJ concluded that appellant failed to

establish a prima facie case of constructive discharge. In reaching this

conclusion, the AJ concluded that appellant failed to demonstrate that:

(1) he was subjected to working conditions which a reasonable person

would have found intolerable, (2) the agency's actions were motivated by

retaliatory animus, or (3) he was forced to resign due to intolerable

working conditions. After listing the reasons appellant believed the

agency engaged in a campaign of retaliation in an attempt to force him

to resign (see RD at pages 23 through 27), the AJ specifically noted that

she found appellant's testimony not credible, noting that his statements

and explanations were at times contradictory, absurd, unsubstantiated,

and irresponsible. See RD at pages 35 through 40.

The agency's FAD adopted the AJ's RD, though in its FAD, it identified

four issues, two of which were substantially similar to issues (1) and

(2) stated above, and two of which specify additional facts not set forth

in issue (3) of the AJ's RD. Appellant did not submit any contentions

on appeal, and the agency requests that we affirm the FAD.

After a careful review of the record, the Commission finds that the

AJ's RD summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. The Commission first notes that to

the extent the statement of the issues differs between the AJ's RD

and the FAD, we find that issue (3) of the AJ's RD properly identifies

and summarizes all of appellant's allegations that each agency action

was motivated by retaliatory animus with the intent of forcing him to

resign. We also agree with the AJ's conclusion that appellant failed to

present evidence that any of the agency's actions were in retaliation

for appellant's prior EEO activity, that the working conditions were

intolerable to a reasonable person, or that conduct which constituted

discriminatory treatment created intolerable working conditions. See

DeMeuse v. United States Postal Service, EEOC Appeal No. 01950324

(May 22, 1997). We discern no basis to disturb the AJ's findings of no

retaliation which were based on a detailed assessment of the record and

the credibility of the witnesses. See Esquer v. United States Postal

Service, EEOC Request No. 05960096 (September 6, 1996). Therefore,

after a careful review of the record, including arguments and evidence

not specifically addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

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:

September 2, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 The Commission notes

that the AJ's RD adequately sets forth the facts,

which will not be repeated herein except where

additional clarification is required.