01a50725
07-07-2006
James Gregory, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Army & Air Force Exchange Service (AAFES), Agency.
James Gregory v. Army and Air Force Exchange Service
01A50725
July 7, 2006
.
James Gregory,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Army & Air Force Exchange Service (AAFES),
Agency.
Appeal No. 01A50725
Agency Nos. AAFES00023; AAFES00108; AAFES00100
Hearing No. 310-2004-00056X
DECISION
Complainant timely initiated an appeal from the agency's final order
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Shift Operation Specialist at the
agency's Headquarters in Dallas, Texas, filed three formal EEO complaints
on November 12, 1999 (AAFES00023), May 30, 2000 (AAFES00108), and August
8, 2001 (AAFES00100), respectively. The complaints were subsequently
consolidated. First, complainant alleged that the agency discriminated
against him on the basis of race (Black) when:
(1) complainant was issued his Performance Evaluation Report (PIE)<1>
for the period June 1, 1998 to April 30, 1999.
Additionally, complainant alleged that the agency discriminated against
him on the basis of race and sex (male) when:
complainant was issued his PIE<2> for the period May 1, 1999 to April
30, 2000.
Finally, complainant alleged he was discriminated against on the bases
of sex and race and in reprisal for prior EEO activity arising under
Title VII when:
complainant was issued his PIE<3> for the period May 1, 2000 to January
31, 2001.<4>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, on August 23, 2004,
the AJ issued a bench decision finding no discrimination.<5>
In her decision, the AJ found that complainant established a prima
facie case of sex and race discrimination as to all three issues.
Specifically, complainant established that he was treated less
favorably than a Caucasian female concerning ratings. Additionally,
the AJ assumed for purposes of the decision that complainant suffered an
adverse action by virtue of his �fully successful� performance rating,
that the alleged discriminating official was aware of complainant's prior
EEO activities, and that complainant established a prima facie case of
retaliation. The AJ then found that the agency articulated legitimate,
nondiscriminatory reasons for its actions; namely, complainant's rater for
May 1998 to April 1999 stated that there was a difference in the amount of
follow-up between complainant and the comparator. Specifically, the rater
stated that he had to have more follow-up with complainant, whereas the
comparator would involve him and tell him what was going on. The rater
additionally testified that the comparator deserved a �promote ahead of
all others� because she was ready to take on more responsibilities based
on her performance and how she managed her individual group. As to the
second PIE, complainant's rater for the 1999 to 2000 period asserted
that complainant failed to meet any time-lines and that complainant's
priorities were not the rater's priorities. The rater stated that in
contrast, the comparator was always ahead of schedule.
The AJ additionally found that the Operations Manager (O1) for Information
Systems stated that he considered the following in determining a rating:
an employee's coaching and mentoring of other employees, interactions
with other managers, input from the rater, time limits for completing
projects, and initiative. The AJ found that O1 stated that complainant
came to him twice with complaints about his PIE, arguing that he disagreed
with the score in the accomplishments area (but never asserting that the
ratings were discriminatory). The AJ found that O1 asked complainant for
documentation to substantiate his position, and consequently, O1 raised
complainant's score twice. The AJ further found that O1 testified that
complainant's comparator deserved the higher rating that she received
because she was over the entire command center (three shifts), while
complainant only supervised one shift.<6>
The AJ then found that complainant failed to establish that the agency's
reasons were pretextual, noting that although complainant adamantly
disputed the reasons for his ratings, he did not present evidence that the
ratings (all of which were given by different raters and approvers) were
motivated by discriminatory animus. The AJ also noted that complainant
stated that it was not his testimony that every rater had discriminated
against him. Accordingly, the AJ found no discrimination. The agency's
final order implemented the AJ's decision.
On appeal, complainant contends that if the AJ had not misinterpreted some
of the facts, the outcome of the case would be different. Specifically,
complainant asserts that the AJ found that O1 testified that the
comparator deserved the rating she received because she was over the
entire command center, while complainant only supervised one shift.
Complainant contends that this is not an accurate representation of
the testimony, and that in fact, the comparator was a Shift Supervisor
just like complainant, and the comparator was responsible for a total
of four employees, while complainant was responsible for ten employees.
Additionally, complainant contends that the reasons given by the agency
for the ratings are neither clear nor specific. In response, the
agency restates arguments previously made, and notes that the ratings
that complainant contests were the same ratings that he had received in
previous years, and that complainant testified that the prior ratings
were not discriminatory. The agency further requests that we affirm
its final order.
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.
Initially, we address the fact that three witnesses testified
telephonically, without the objection of the parties.<7> The Commission
has held that testimony may not be taken by telephone in the absence of
exigent circumstances, unless at the joint request of the parties and
provided special conditions have been met. Louthen v. United States
Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).<8> However,
since the facts of this case pre-date Louthen we will assess the propriety
of conducting part of the hearing telephonically, by considering
the totality of the circumstances. We find that there were exigent
circumstances in this case; namely, retired Federal employees are not
required to testify and cannot be compelled to appear in person, however,
in this instance, two retired employees were nevertheless willing to
testify telephonically. As to the third employee who was located in Korea
and agreed to testify telephonically, it is not clear whether exigent
circumstances existed which prevented him from appearing in person.
In any event, we do not discern any specific issues of credibility that
might have been affected by the taking of testimony telephonically.
Under these circumstances, the Commission finds that the taking of the
testimony telephonically constituted harmless error. See Sotomayor
v. Department of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. Additionally,
even assuming (contrary to the AJ's finding) that complainant supervised
more individuals than his comparator, complainant still failed to
present evidence that the ratings he received were in retaliation for
his prior EEO activity or were motivated by discriminatory animus toward
his protected groups. We discern no basis to disturb the AJ's decision.
Therefore, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
July 7, 2006
__________________
Date
1 Complainant received a score of 46 and �advance with contemporaries.�
2 Complainant received a score of 43 and �advance with contemporaries.�
3 Complainant received a score of 46 and �advance with contemporaries.�
Complainant believes he should have received higher scores, and the rating
�promote ahead of all others� on all three PIEs, which complainant's
comparator (a White female) received.
4 Complainant alleged that due to all three PIEs, his opportunities for
promotions, awards and bonuses were adversely affected.
5 We note that although all other witnesses who testified were present
at the hearing, three witnesses testified telephonically. One witness,
the Chief Operating Officer who retired in 1997, agreed to testify
telephonically. The second witness who testified telephonically was
the Vice President of the Information Technology Directorate, who was
also retired at the time of the hearing. The third witness who testified
telephonically, the former Operations Manager for Information Systems,
did so because he was in Korea. Neither party noted an objection
at the hearing, nor on appeal, to the fact that testimony was taken
telephonically.
6 We note that in her decision, the AJ did not specifically outline the
agency's articulated legitimate, nondiscriminatory reason for the third
PIE rating. The rater for the PIE in issue (3) did not testify at the
hearing, however, the AJ noted during the hearing that she would rely on
the rater's testimony in the Report of Investigation (ROI). See Hearing
Transcript at 7. In his affidavit, the rater articulated a legitimate,
nondiscriminatory reason for his action; namely, that complainant had
some issues with his leadership and communication skills during the
reported period. He further stated that the comparator exceeded her
goals and had great potential based on her organizational knowledge,
leadership, and the projects she accomplished.
7 The mere lack of objection is not dispositive, however. See Louthen
v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17,2006).
8 In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent. When
assessing prior instances of telephonic testimony, the Commission will
determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further,
where telephonic testimony was improperly taken, the Commission will
scrutinize the evidence of record to determine whether the error was
harmless, as is found in this case.