0120093259
06-27-2012
William J. Chaudoin, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
William J. Chaudoin,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120093259
Hearing No. 470-2007-00167X
Agency No. ARIMASE05NOV12144
DECISION
On August 5, 2009, Complainant filed an appeal from the Agency's July 10, 2009, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). 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 the Deputy Director of Emergency Services at the Fort Campbell, Kentucky facility of the Agency. A Lieutenant Colonel (S1) became Complainant's supervisor in February 2004. Complainant left the workplace on June 28, 2005 and did not return.1 On November 17, 2005, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment based on age (59 at time of incident) between February and December 2005. Specifically, Complainant alleged discrimination by the Agency when:
a. on September 26, 2005, S1 requested additional medical documentation and initiated a fitness for duty evaluation;
b. on June 28, 2005, S1 issued Complainant a written reprimand for purchasing safety glasses and safety shoes for himself and authorizing an employee (C1) to purchase safety items for work from agency funds:
c. on June 8. 2005, S1 initiated an AR 15-6 (internal) Investigation against Complainant for purchasing safety glasses and safety shoes for himself and authorizing C1 to purchase safety items using Agency funds;
d. on August 3. 2005, Complainant's second level supervisor (S2) denied the July 12, 2005 appeal of Complainant's written reprimand;
e. S1 rated Complainant "Successful" for the performance appraisal period July 1, 2004 through June 30, 2005;
f. S1 failed to grant Complainant a cash award for the performance appraisal period July 1, 2004 through June 30, 2005;
g. on June 28, 2005, to further embarrass Complainant, S1 issued C1 a written reprimand for purchasing safety items Complainant authorized him to buy; and
h. in March 2005, Agency leadership required specific job qualification requirements for the position of Director, Department of Public Works, GM-15, to preclude Complainant from qualifying/applying for the position.
.
The Agency accepted Complainant's complaint for investigation. 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.
After a hearing, the AJ assigned to the case issued a decision finding discriminatory harassment. Specifically, the AJ stated that the Agency subjected Complainant to actions that rose to the level of a hostile work environment, including the manner in which S1 handled the AR 15-6 investigation as well as the resulting recommendations of the investigating officer, the offensive notes S1 placed on Complainant's door on his birthday, S1's removal of Complainant's supervisory duties and improper treatment in staff meetings, S1's inquiries about Complainant's retirement plans and sick leave usage, and S1's low rating of Complainant's performance and failure to provide a bonus. The AJ specifically excluded, from the finding of a hostile work environment, the initiation of the AR 15-6 internal investigations, the non-selection for the Director position, the request for medical documentation, and the inquiry regarding a possible return to work or reasonable accommodation. Further, the AJ found that Complainant failed to establish constructive discharge, stating that the record showed that Complainant intended to retire absent the hostile work environment. Notably, the AJ found Complainant's testimony generally credible and S1's "suspect" in some instances. As a remedy, the AJ ordered the Agency to calculate and award Complainant a performance bonus, require EEO training of the responsible management official - S1, post a notice of nondiscrimination policy, and expunge all references to the actions that prompted the instant complaint from Complainant's personnel records.
The Agency subsequently issued a final order implementing the AJ's finding of discrimination, stating that it would comply with the order for remedies. The instant appeal from Complainant followed.
CONTENTIONS ON APPEAL
On appeal, Complainant opposes the AJ's finding of no constructive discharge and disputes the calculation of bonus award. Complainant states that he did not really want to retire in 2006 and planned to work more years. Complainant states that he feared removal and felt that he might not be able to retire if a removal action was initiated. He states that a subordinate employee received a bonus equal to 5.237% of his base salary in 2005 and he should receive the same. He adds that his annual salary was $93,643, which would equate to a 5.237% bonus of $4904. Complainant asks that the Agency round up the percentage to $5000. He states that the Agency awarded him $2345 and that his prior bonus amounts are irrelevant. In opposition to Complainant's appeal, the Agency stated that it calculated Complainant's bonus using the average bonus percentage (2.5%) from Complainant's prior two bonuses and the fiscal year 2005 bonuses of two senior department managers. It noted that the subordinate employee's bonus was based on base and overtime pay, and after considering that the employee performed an additional billett during the performance period. The Agency stated that it made payment of $2345 to Complainant on September 11, 2009, and provided evidence of directed payment to Complainant's account. Further, the Agency stated that the record indicates that Complainant planned to retire and that his physician recommended retirement.
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).
Complainant alleges that the Agency's actions forced him to retire, equating to constructive discharge. With regard to forced retirement, constructive discharge occurs when an employer deliberately renders an employee's working conditions so intolerable that the individual is forced to retire from his position. Constructive discharge only occurs when the Agency's actions were taken with the intention of forcing the employee to retire. The Commission has established three elements which Complainant must prove to substantiate a claim of constructive discharge: 1) a reasonable person in Complainant's position would have found the working conditions intolerable; 2) the conduct causing the intolerable working conditions is an EEO violation; and 3) Complainant's resignation was caused by the intolerable working conditions. See Taylor v. Army and Air Force Exchange Service, EEOC Request No. 05900630 (July 20, 1990); see also Perricone v. United States Postal Service, EEOC Request No. 05900135 (June 11, 1990).
Upon review of the record, we uphold the AJ's finding of no constructive discharge. We find that Complainant has not established elements (1) and (3) of a constructive discharge claim - that the Agency created intolerable working conditions and that Complainant's retirement was brought on by said conditions. We discern nothing in the present record to support a finding that Complainant has established that his alleged forced retirement constituted a constructive discharge.
Further, we are not persuaded that Complainant is entitled to a 2005 bonus of $5000 as he alleged. We are not persuaded that the bonus awarded to the subordinate employee, who Complainant cited as a comparator, has to be limited to a percentage of his base pay or that Complainant's prior bonus amounts are irrelevant to the 2005 award. Complainant, on appeal, has provided no persuasive arguments indicating improprieties in the Agency's findings. Hence, we award Complainant $2345 in a performance bonus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision and ORDER the Agency to pay Complainant $2345 for a performance bonus.
ORDER
The agency is ordered to take the following remedial action:
1. To the extent that it has not already done so, within 45 (forty-five) calendar days of the date of this decision, the Agency is ordered to pay Complainant $2345 for a performance bonus.
2. The Agency shall conduct a minimum of eight hours of remedial training, with a focus on discrimination based on age, for the manager(s) found to have engaged in discrimination The Agency shall address these employee(s)' responsibilities with respect to eliminating discrimination in the workplace and all other supervisory and managerial responsibilities under equal employment opportunity law.
3. The Agency shall consider taking disciplinary action against the agency official(s) found to have discriminated against Complainant. The agency shall report its decision. If the Agency decides to take disciplinary action, it shall notify the Commission's Compliance Officer of the action taken. If the Agency decides not to take disciplinary action, it shall inform the Commission's Compliance Officer of the reason(s) for its decision not to impose discipline.
4. The Agency is directed immediately to purge its records of all record of or references to the discriminatory actions found in the instant complaint.
5. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of the awards due Complainant, and supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0900)
The Agency is ordered to post at its Department of the Army, Fort Campbell, Kentucky facility copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
6/27/2012
__________________
Date
1 Complainant retired effective January 3, 2006.
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01-2009-3259
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093259