Michael R. Van Druff, Appellant,v.William S. Cohen, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity CommissionOct 30, 1998
01963759 (E.E.O.C. Oct. 30, 1998)

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