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.