0120101622
07-13-2011
William D. Sypher, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
William D. Sypher,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120101622
Hearing No. 530-2007-00445X
Agency Nos. ARUSAR04APR04679 and ARUSAR04NOV07556
DECISION
Complainant filed an appeal from the Agency’s February 4, 2010,
final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
For the following reasons, the Commission AFFIRMS the Agency’s final
order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Supervisory Maintenance Specialist at the Agency’s Fort
Dix Directorate of Logistics Maintenance facility at Indiantown Gap,
Pennsylvania. On May 23, 2004, Complainant filed an EEO complaint alleging
that the Agency discriminated against him on the bases of age (59) and
reprisal for prior protected EEO activity under the Age Discrimination in
Employment Act of 1967 when Complainant was constructively discharged,
effective December 4, 2004. In his complaint, Complainant described
the following incidents as precipitating his discharge:
1. On March 31, 2004, Complainant was required to report to work
while on sick leave and was then issued a letter dated April 1, 2004,
which temporarily changed his duty location from Fort Indiantown Gap,
Pennsylvania, to Fort Dix, New Jersey, pending an investigation;
2. On April 8, 2004, Complainant received a letter dated April 5,
2004, which terminated Complainant’s Quality Assurance Representative
delegation;
3. On May 28, 2004, Complainant received an amendment to his
Temporary Duty (TDY) orders extending his temporary duty (TDY) until
June 13, 2004;
4. On June 9, 2004, Complainant received an additional 14 day
extension to his TDY orders until June 26, 2004;
5. On June 23, 2004, Complainant was presented with a "Change of
Duty Location Pending Investigation” memorandum dated June 22, 2004;
6. Between February 24, 2004, and May 24, 2004, Complainant became
aware that approval of 15 of 17 training courses requested on February 4,
2004, was denied;
7. On September 15, 2004, Complainant learned that his Government
Travel charge card account was suspended due to his supervisor's failure
to approve and process Complainant’s travel voucher claims; and,
8. As of September 27, 2004, Fort Dix management had failed to
approve and process Complainant’s travel voucher claims.
Previously, in William Sypher v. Dep’t. of the Army, EEOC Petition
No. 0320080064 (June 12, 2008), the Commission denied Complainant’s
request to consider the decision of the Merit Systems Protection
Board (MSPB) denying jurisdiction over Complainant’s claim that he
was forced to retire because of his age or in reprisal for prior EEO
activity. The MSPB found that Complainant’s retirement was voluntary.
The Commission noted that the Agency was required by operation of 29
C.F.R. § l614.302(c)(2)(ii), to process his allegations of discrimination
as a "non-mixed" matter pursuant to 29 C.F.R. § 1614.109 et seq. Id.
By letter dated January 10, 2005, the Agency dismissed Complainant’s
claim that he was subjected to discrimination when he was issued a Notice
of Proposed Removal dated November 15, 2004. The Agency dismissed this
claim pursuant to 29 C.F.R. § 1614.107(a)(1) on the grounds that the
Notice was a preliminary step to a personnel action that did not state
a claim. ROI at 103. Complainant does not challenge the Agency’s
dismissal on appeal and we AFFIRM the Agency’s dismissal of this claim
on the grounds stated.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
requested a hearing and the AJ held a hearing on November 10, 2009,
and issued an order entering judgment on January 22, 2010.
In her decision, the AJ found that Complainant failed to establish a
prima facie case of age discrimination. Specifically, the AJ noted that
Complainant was essentially relieved of his job duties while the Agency
conducted an investigation into allegations that Complainant had sent
unsolicited resumes to an Agency contractor for employment consideration.
The Agency determined that Complainant could not fulfill the requirements
of his position during the pendency of the investigation into whether
Complainant committed a breach of his ethical obligations as a federal
employee. Id. at 19. AJ found that Complainant presented only two
assertions regarding age. The evidence indicated, the AJ noted, that
Complainant was replaced by a younger person and that others talked
about Complainant’s retirement. AJ’s Bench Decision, (AJ Decision)
December 9, 2009 at 23. The AJ found this evidence was insufficient to
establish any connection to Complainant’s constructive discharge claim.
Id. at 23.
Similarly, the AJ found that Complainant failed to establish a prima
facie case of reprisal discrimination. The AJ found that none of the
individuals responsible for the actions that led to Complainant’s
discharge were aware, at the time of their involvement with those actions,
that Complainant had previous EEO activity. Id. at 24.
For the sake of argument, the AJ assumed that Complainant had
demonstrated a prima facie case of age or reprisal discrimination.
Even so, the AJ found that the Agency articulated legitimate reasons for
its actions. Id. at 25. The AJ noted Complainant’s own explanation
of his understanding regarding whether he could ethically seek work with
the successful bidder for contracts with the Agency, where Complainant
served on the source selection board. Complainant explained that prior
to January 2004, he believed that he was permanently banned from seeking
employment with any contractor that could be the winning bidder for any
contract where Complainant had served on the source selection board.
Later, Complainant came to believe that the permanent ban applied
only to previous contractors. Id. at 26. Significantly, the AJ noted
that Complainant admitted that he remains confused about the various
ethical prohibitions regarding post federal employment as it relates
to Complainant’s particular circumstances. Id. at 27. The AJ
concluded that Complainant’s misunderstanding or confusion regarding
the applicable ethical regulations underlies Complainant’s voluntary
retirement and that Complainant did not show by a preponderance of the
evidence that he was subjected to age or reprisal discrimination. Id.
The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. Agency’s February 4, 2010 Final Decision
(Ag Decision).
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (November
9, 1999).
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant must initially establish a prima facie case by demonstrating
that he or she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco
Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation is pretextual. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, we find the evidence substantially supports the
AJ’s Decision. Specifically, we find the record reveals that in
December 2002 and again in March 2004, Complainant sent his resume to an
identified company in Yorba Linda, California. Report of Investigation
(ROI) at 208, 265. In its November 12, 2004 Notice of Proposed Removal,
the Agency explained that these solicitations to a company seeking to do
business with the federal government undermined the Agency’s ability to
“conduct business in a fair and impartial manner with this particular
vendor and degraded the public confidence….” Notice of Proposed
Removal, November 12, 2004; Record on Appeal (ROA) at 45.
We observe, as did the AJ, that Complainant did not deny that he
sent his resume to the identified contractor as the Agency stated.
Additionally, the record reveals substantial correspondence between
Complainant and Agency officials regarding conflicts of interest should
Complainant seek outside employment before his retirement and thereafter.
See, for example, Electronic Mail Message to Complainant, November 4,
2002; Report of Investigation at 43. We find that the discovery that
Complainant had sent his resumes to the identified contractor precipitated
the Agency’s investigation into Complainant’s conduct, during which
the Agency suspended Complainant’s duties for which he was required
to hold a QAR certification. Hearing Transcript, (Hr’g Tr) at 109;
Report of Investigation, (ROI) at 224.
We find, as did the AJ, that Complainant has not shown that his age or
prior EEO activity motivated the Agency’s actions that ultimately led
to the issuance of a Notice of Propose Removal in November 2004, in lieu
of which removal action Complainant elected to retire in December 2004.
ROA at 45; Hr’g Tr at 180.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the Agency’s Final Decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 13, 2011
__________________
Date
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0120101622
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101622