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.)