Ralph G. Bauer, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 12, 2000
01997212 (E.E.O.C. Dec. 12, 2000)

01997212

12-12-2000

Ralph G. Bauer, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Ralph G. Bauer v. Department of the Army

01997212

December 12, 2000

.

Ralph G. Bauer,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Appeal No. 01997212

Agency No. COL-97-AR-0795-E

Hearing No. 170-98-8140X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) complaint of unlawful

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., and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.<1> The appeal is accepted pursuant to 29

C.F.R. � 1614.405. Complainant alleges he was discriminated against

on the bases of age (DOB: 5/3/27) and reprisal (prior EEO activity),

when he was given work he was not qualified to perform, and was not

given enough time to complete work that he was qualified to perform.

The record reveals that complainant, then a Naval Architect, at the

agency's Marine Design Center, US Army Corps of Engineers, Philadelphia,

Pennsylvania facility, filed a formal EEO complaint with the agency

on June 11, 1997, alleging that the agency had discriminated against

him as referenced above.<2> At the conclusion of the investigation,

complainant received a copy of the investigative report and requested

a hearing before an EEOC Administrative Judge (AJ). The AJ issued a

decision without a hearing, finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of age discrimination. Specifically, the AJ found that complainant

failed to demonstrate that similarly situated employees not in his

protected class were treated differently under similar circumstances.

Although complainant cited one other employee at his grade level, not

in his protected class, who he alleged was treated more favorably,

the AJ found no evidence to show that the comparative's duties were

any different than the duties assigned to complainant. In addition,

the AJ found that the comparative and complainant were given similar

time frames in which to complete their tasks.

The AJ also found complainant failed to establish a prima facie case of

reprisal. Although complainant established that he participated in prior

EEO activity of which his supervisor was aware, the AJ found insufficient

evidence that complainant suffered an adverse action. In that regard, the

AJ found complainant's position description included duties complainant

cited as being too complex. Although the AJ found complainant may have

been assigned some GS-12 duties, they were not assigned on a regular or

continuing basis, and therefore, did not constitute duties outside his

grade level. Furthermore, the record reveals complainant requested a desk

audit in 1995, before he engaged in EEO activity, where he alleged he was

assigned GS-12 work. In that regard, the AJ noted the classification

audit established complainant's GS-11 position was properly classified

as GS-11. Furthermore, the AJ found no evidence that complainant's

assignments after he engaged in EEO activity were more complex than

those he was assigned before he engaged in EEO activity.

As for complainant's allegation that he was given inappropriate time

frames in which to complete his tasks, the AJ found complainant failed to

show how he was harmed, because the evidence revealed that complainant

did in fact complete his assignments within the time frames allotted or

within the extensions granted. The AJ noted that one assignment, project

No. 2412, was not timely completed, and resulted in a proposed 5 day

suspension for insubordination. However, the AJ found that the task was

not timely completed because complainant objected to the format in which

he was to complete the task, not because of the time frame allotted.<3>

The AJ further concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions. The AJ found that both

complainant's first and second level supervisors testified at a fact

finding conference that complainant was routinely assigned duties which

were in compliance with his position description, and were appropriate for

his grade level. Although they testified some of his duties, if assigned

on a regular and continuing basis, could be construed as GS-12 duties,

such duties were only occasionally assigned to complainant. They testified

complainant never had sole responsibility over a project and always worked

under the direct supervision of a first line supervisor. Finally, they

testified that tasks assigned to complainant, as well as those given to

other GS-11 employees, were afforded appropriate deadlines.

The AJ found that complainant did not establish that more likely than

not, the agency's articulated reasons were a pretext to mask unlawful

discrimination and/or retaliation. In reaching this conclusion, the AJ

found that complainant provided no evidence that the agency's reasons

for its actions were a pretext for discrimination.

On August 30, 1999, the agency's final decision adopted the recommended

decision of the AJ. On appeal, complainant contends that he completed

work in a timely manner.

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. This regulation is patterned after the summary judgment procedures

set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary

Judgment is proper when "material facts are not in genuine dispute."

29 C.F.R. �� 1614.109(g). Only a dispute over facts that are truly

material to the outcome of the case should preclude summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes

over facts that might affect the outcome of the suit under the governing

law, and not irrelevant or unnecessary disputes, will preclude the entry

of summary judgment). For example, when a complainant is unable to

set forth facts necessary to establish one essential element of a prima

facie case, a dispute over facts necessary to prove another element of

the case would not be material to the outcome. Celotex v. Catrett, 477

U.S. 317, 322-23 (1986). EEOC Management Directive 110(MD-110), at 7-15

(November 9, 1999). The Commission will apply a de novo standard of

review when it reviews an AJ's decision to issue a decision without a

hearing pursuant to 29 C.F.R. �� 1614.109(g). See EEOC MD-110, at 9-16.

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

AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. Although we agree

with the AJ's ultimate finding that complainant failed to establish

a prima facie case of age discrimination, we note that complainant

must only present evidence which, if unrebutted, would support an

inference that the agency's actions resulted from discrimination.

See O'Connor v. Consolidated Coin Caters Corp., 116 S.Ct. 1307(1996);

Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp.,

EEOC Notice No. 915.002, n. 4 (September 18, 1996). Thus, complainant's

failure to present evidence of a similarly situated individual outside

of his protected class who was treated more favorably is not entirely

determinative. Despite this, we nonetheless find he failed to establish

an inference of discrimination. Complainant present no evidence,

other than his own assertions, that he was assigned work outside of his

grade level on a regular and continuing basis, or that he was assigned

unreasonable deadlines.

Additionally, we find complainant failed to present evidence that any

of the agency's actions were in retaliation for complainant's prior EEO

activity or were motivated by discriminatory animus toward complainant's

age. We discern no basis to disturb the AJ's decision. Therefore, after

a careful review of the record, including complainant's contentions on

appeal, the agency's response, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 12, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The record reveals complainant resigned from the agency in July 1997.

3Evidence at the fact finding conference revealed complainant never

served the suspension. (Fact Finding Transcript at p. 57.)