05980140
10-08-1998
Carlos F. Doria, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Carlos F. Doria v. Department of the Army
05980140
October 8, 1998
Carlos F. Doria, )
Appellant, )
) Request No. 05980140
v. ) Appeal No. 01953698
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On November 14, 1997, the Department of the Army (hereinafter referred
to as the agency) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Carlos F. Doria v. Togo D. West, Jr., Secretary, Department of
the Army, EEOC Appeal No. 01953698 (October 10, 1997), received on
October 15, 1997. EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
For the reasons set forth herein, the agency's request is granted.
ISSUE PRESENTED
The issue presented herein is whether the Commission's previous decision
properly found that appellant was subjected to reprisal discrimination
with regard to an investigation by the agency's Criminal Investigation
Division.
BACKGROUND
Appellant filed a formal EEO complaint in May 1994, alleging that he was
discriminated against in reprisal for prior EEO activity when he was
investigated by the agency's Criminal Investigation Division (CID).
According to the record, the Deputy Resource Manager (Responsible
Official 1; RO1) overheard appellant and another employee (Employee A)
mentioning that records had been checked to verify that an individual,
referred to only by her first name (Employee B), did not have a college
degree. RO1 stated that she assumed Employee B's personnel records
had been examined, and informed upper management of the conversation.
RO1 indicated that she believed the conversation was merely idle talk at
the time. RO1 testified that she later received a call from an individual
in the Civilian Personnel Office (CPO) who, during the course of the
conversation, mentioned that a male employee who identified himself as
Employee B's supervisor had been looking at Employee B's personnel file.
RO1 stated that she again advised upper management of the information,
because she knew Employee B's supervisor was female.
The Personnel Clerk (Clerk) confirmed that a male employee identifying
himself as a supervisor asked to examine Employee B's and RO1's personnel
files. The Clerk, who described himself as being new to the office,
noted that the individual came into the CPO around the Christmas holiday
when the office was short-handed. The Clerk indicated that only one
other employee was in the office at the time, and that the individual was
working with her back to him. The Clerk stated that it was not uncommon
for supervisors to review employee information, and that, following the
incident, new procedures were instituted for accessing personnel files.
The Chief Counsel (Responsible Official 2; RO2) testified that after he
learned there had been allegations that appellant obtained unauthorized
access to one or more personnel files, he contacted CPO to verify the
information. RO2 stated that he was involved in preparing an answer to
a civil action appellant had filed concerning a promotion received by
Employee B, and was concerned about possible unauthorized discovery and
violations of the Privacy Act. RO2 stated that, through information
received from CPO, he was able to determine that an individual other
than Employee B's supervisor had accessed her personnel file. RO2 then
contacted CID.
A CID investigator met with appellant on January 25, 1994. Appellant
declined to have his picture taken, or answer questions after being
advised that the investigation concerned possible violations of the
Privacy Act. The Clerk was unable to identify a photograph of appellant,
and RO2 stated that he was told appellant's fingerprints did not match
any of those obtained from the files.<1> RO2 then advised CID to close
the investigation.
Appellant acknowledged that no charges were brought against him, and
no adverse actions taken as a result of the investigation. Appellant
testified that he would not have complained, and would have considered
the investigation reasonable, if he had been advised of the matter prior
to the interview with the CID Investigator.
In its final decision dated March 14, 1995, the agency found that
appellant had not been subjected to reprisal discrimination.<2> The
previous decision reversed the final agency decision, finding that the
agency's stated reasons for the action were pretextual. The previous
decision determined that RO1's testimony concerning the call from CPO was
not credible. Further, the previous decision questioned RO2's concern as
to unauthorized discovery in connection with appellant's civil action.
The previous decision noted that the statements which RO2 relied upon
to initiate the CID investigation were not included in the record.
Finally, the previous decision opined that RO2 would have encouraged
CID to continue with the investigation if he had truly been concerned
as to who accessed the files.
In its request for reconsideration, the agency asserted that RO2
acted reasonably in contacting CID after verifying that an individual
other than Employee B's supervisor had accessed her personnel file.
The agency noted that, since there were no other suspects, it would have
been impractical to attempt to match fingerprints to those on the file.
The agency indicated that both RO1 and the Clerk corroborated RO2's
rationale for contacting CID. The agency included the statements from
RO1 and the Clerk which were given to CID in 1994, noting that it could
not explain their absence from the record.
In response to the agency's request, appellant stated that he was aware
of Employee B's qualifications, because she had applied for a job in his
Division several years previously, and would not have needed to access
her file. Appellant further denied that the conversation with Employee
A ever occurred. Appellant opined that the Clerk was either confused
or coerced by RO1. Appellant stated that RO2 presented no evidence that
CPO verified that records were inappropriately accessed.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration
submits written argument or evidence which tends to establish that
any of the criteria of 29 C.F.R. �1614.407(c) is met. After a
careful review of the record herein, the Commission finds that the
agency's request for reconsideration meets the regulatory criteria
of 29 C.F.R. �1614.407(c)(2). Accordingly, it is the decision of the
Commission to grant the agency's request.
The previous decision initially found that RO1's testimony concerning
the telephone call from CPO was not credible; however, the statements
of the Clerk corroborate what RO1 was told during the conversation.
Furthermore, the Clerk stated that the individual who claimed to be
Employee B's supervisor also asked to review RO1's personnel file. Thus,
it would not have been unreasonable for an individual in CPO to mention
the incident to RO1. The Commission declines to find RO2's reference
to appellant's civil action to be indicative of reprisal in this case
given that the matter concerned a promotion received by Employee B.
The previous decision also relied upon the absence of the statements given
to CID from the record in concluding that discrimination had occurred.
The record, however, contained essentially the same testimony from RO1
and the Clerk given during a fact finding hearing. In addition, while
the previous decision found RO1's statements regarding the conversation
between appellant and Employee A to be vague and speculative, we
find RO1's interpretation of the conversation to be reasonable given
the information she received from CPO.<3> Finally, the Commission
does not find RO2's actions in advising CID to discontinue the
investigation to be suspect, given that there was no evidence linking
any other employees to the personnel file incident. Therefore, the
Commission finds that appellant failed to establish that the agency's
articulated reasons for initiating the CID investigation were a pretext
for discrimination. Accordingly, the Commission grants the agency's
request for reconsideration, and affirms the agency's final decision
finding that appellant was not subjected to reprisal discrimination.
CONCLUSION
After a review of the agency's request for reconsideration, appellant's
response thereto, the previous decision, and the entire record, the
Commission finds that the agency's request meets the criteria of 29
C.F.R. �1614.407(c)(2), and it is the decision of the Commission to
GRANT the agency's request. The decision of the Commission in EEOC
Appeal No. 01953698 (October 10, 1997) is REVERSED, and the agency's
final decision is AFFIRMED. The agency need not comply with the Order
set forth in the previous decision. There is no further right of
administrative appeal on a decision of the Commission on this Request
for Reconsideration.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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.
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 8, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The Clerk indicated that the photograph of one individual shown to him
was somewhat familiar, but he was uncertain whether it was the same
individual who accessed the files.
2Appellant did not respond to the notification of his right to request
an administrative hearing.
3It is noted that while appellant denied, in his response to the agency's
request for reconsideration, that the conversation with Employee
A occurred, appellant specifically declined to call Employee A as a
witness during the fact finding hearing.