01963759
10-30-1998
Michael R. Van Druff, Appellant, v. William S. Cohen, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.
Michael R. Van Druff v. Department of Defense
01963759
October 30, 1998
Michael R. Van Druff, )
Appellant, )
) Appeal No. 01963759
v. ) Agency No. W93-6
)
William S. Cohen, )
Secretary, )
Department of Defense )
(Defense Contract Audit Agency), )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal is accepted
by the Commission in accordance with the provisions of EEOC Order
No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
appellant based on sex (male) and reprisal (prior EEO activity) with
regard to 26 incidents which occurred in 1992.
BACKGROUND
During the period in question, appellant was employed as a Senior Auditor
at the agency's South County Branch Office in San Diego, California.
Appellant filed a formal complaint in November 1992 in which he alleged
discrimination based on sex and reprisal when:
1. on September 18, 1992, he received a mid-year progress report (Progress
Report) which contained inappropriate comments and references;
2, 3. three female auditors, but not appellant, received cash awards
and were invited to the home of appellant's supervisor (the Responsible
Official, RO);
4. the Progress Report did not encompass work appellant performed between
March and April 1992;
5. the RO erred in including an indirect/direct hour ratio in the Progress
Report;
6. the RO erred in including sick and annual leave information in the
Progress Report;
7. the RO included a reference to appellant's prior EEO activity in the
Progress Report;
8. the RO erred in her calculation of indirect/direct time in the Progress
Report;
9. in the Progress Report, the RO misstated that appellant worked for
her on assignments 92G12000006 and 92G19100003 and made comments about
his work that were "too general";
10, 11. the RO improperly delegated authority, allowing two lead auditors
to supervise appellant's work on two assignments;
12. as of September 18, 1992, assignment 92G11050001 had not been reviewed
by the RO, and she refused to increase the budget of this assignment;
13. the RO did not review assignment 92G23000009 and it was reviewed by
another individual;
14. the RO instructed appellant not to perform a regression analysis on
assignment 92G23000006;
15. the RO suggested that she would review assignment 92G11050001 at a
later time, which was improper;
16. the RO reviewed assignment 92G191000003 in a cursory manner;
17. appellant's work papers reviewed in the Progress Report were prepared
according to agency and General Accounting Office standards;
18. in a November 14, 1992, document, the RO stated that appellant used
"excessive" form, but did not provide a definition or give examples;
19. in the Progress Report, the RO unclearly and erroneously stated that
appellant did not make efficient use of budget hours;
20. the RO did not distinguish between audit effort required to develop
audit working papers and supervisor effort to review the working papers;
21. the RO's positive remarks about appellant in the Progress Report--that
he has potential and is intelligent--are inconsistent with the other
comments and could have been derived from an inappropriate source,
if not from substantive audit work and working papers;
22, 23. the RO inappropriately used an element outside appellant's control
in rating him and wrote the term "frustrating" in the Progress Report;
24. the RO made an unauthorized reference in the Progress Report to one
of appellant's previous appraisal scores;
25. the RO did not provide appellant with formal classroom training
opportunities when he first arrived at the office, with the exception
of one course; and
26. appellant requested relocation of a common workstation in the office,
but the RO and another supervisor allowed the workstation to remain near
another auditor's cubicle.
Following an investigation of these allegations, appellant requested
a final decision, which was issued on May 19, 1994, and which found
no discrimination. Appellant appealed and the prior decision vacated
the final decision on the grounds that it did not contain, among other
things, a discussion of the facts and a statement of the applicable
law. See Van Druff v. Department of Defense, EEOC Appeal No. 01944078
(January 24, 1996). The agency thereafter cured these deficiencies in
a final decision (FAD) dated April 1, 1996, in which it again found no
discrimination. It is from this decision that appellant now appeals.
ANALYSIS AND FINDINGS
Issues 1-6, 8-26
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Appellant has the initial burden
of establishing a prima facie case of discrimi-nation. If appellant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a prepon-derance of the evidence, that
the legitimate reason articulated by the agency was not its true reason,
but was a pretext for discri-mination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Assuming, arguendo, that appellant can establish a prima facie case
of discrimination based on sex and reprisal, we find that the agency
articulated legitimate, nondiscriminatory reasons for the incidents in
question. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254
(1981). Specifically, the RO addressed each of appellant's allegations
and offered an explanation as to why she took, or did not take, the
action in question.
At this point, appellant bears the burden of establishing that the
agency's articulated reasons are a mere pretext for discrimination.
Appellant can do this either directly, by showing that a discrimi-natory
reason more likely motivated the agency, or indirectly, by showing
that the agency's proffered explanation is unworthy of credence. Id.
We find appellant has not established pretext. Appellant has attempted
to demonstrate, in effect, a pattern of discrimination against him by
the RO, most of it dealing with various aspects of the Progress Report.
Although it is apparent from the record that there was clearly a
personality conflict between appellant and the RO, the Commission finds
nothing which suggests that the actions complained of by appellant
were related to either his sex or his prior EEO activity. Moreover,
although appellant clearly disagrees with the various actions taken,
or not taken, by the RO, there is insufficient evidence in the record
to conclude that the RO's explanations for these actions/inactions are
unworthy of credence. Accordingly, we find appellant has not established
that he was discriminated against with regard to Issues 1 through 6 and
8 through 26.
Issue 7
The Progress Report states that appellant had charged 779 hours
to assignments, and that a considerable percentage of these hours
were "indirect," i.e., hours that he was not actually working on
the assignments. The Report notes that 174 of these hours were
attributable to sick and annual leave, and that "[a]nother 59 hours
have been devoted to EEO." In response to appellant's allegation that
this reference to his prior EEO activity was improper, the RO stated,
"The breakout of indirect labor charges that I provided resulted from my
detailed approach to analyzing. It was simply my style of presentation.
No malicious intent can be read into this approach."
In considering the RO's comment, we note that, in Crespo v. U.S. Postal
Service, EEOC Request No. 05920842 (September 17, 1993), the Commission
held that referring to an individual's prior EEO complaints in a
supervisory evaluation constituted a per se violation of the Commission's
regulations. In considering the present situation, we find that it is
distinguishable from the one which existed in Crespo. Specifically,
in Crespo the reference to the complainant's EEO complaints was clearly
gratuitous and served no legitimate purpose. Conversely, in this case
the RO offered a legitimate reason for the reference, i.e., that, in
response to appellant charging 779 hours to assignments, he was breaking
down the hours appellant had spent on indirect labor which included,
in addition to hours spent on sick/annual leave and other assignments,
hours devoted to EEO activity.
At the same time, however, we are also cognizant of the potential effect
such a comment could have on appellant's future career opportunities.
For these reasons, we direct the agency to expunge the comment from the
Progress Report in the event the Report still exists in either appellant's
official personnel file or agency records.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD and find appellant has
not established that the agency discriminated against him as alleged;
the agency is directed to expunge the comment concerning appellant's EEO
activity from the Progress Report in the event the Report still exists
in either appellant's official personnel file or agency records.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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:
OCT 30, 1998
DATE Ronnie Blumental, Director
Office of Federal Operations