0120061062
04-26-2007
James Murphy, Complainant, v. Pete Geren, Acting Secretary, Department of the Army, Agency.
James Murphy v. Department of the Army
0120061062
04/26/07
.
James Murphy,
Complainant,
v.
Pete Geren,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120061062<1>
Agency No. BEHTFO980310340
Hearing No. 100-99-8143x
DECISION
On December 1, 2005, James Murphy (complainant) filed an appeal from the
October 31, 2005, final decision of the Department of the Army (agency)
concerning a complaint of unlawful employment discrimination in violation
of 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, and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq.<2> The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's decision is affirmed.
This matter comes before us following the Commission's remand for a
hearing. In EEOC Appeal No. 01A04099 (July 11, 2003), the Commission
found that material facts were in dispute and reversed, in part, the
agency's final action with regard to complainant's claim based on age
and sex, returning the matter for a hearing before an Administrative
Judge (AJ). Following that hearing, the AJ issued a decision finding
that complainant established a prima facie case based on age and sex
and that the agency discriminated against complainant based on age but
not based on sex; the agency agreed to fully implement this decision.
Complainant's appeal seeks a finding based on sex, which would allow
complainant to apply for compensatory damages and attorney's fees.
AJ's Decision
At the time of the events herein, complainant worked as a Training
Instructor at the agency's Training Center of the Community and
Family Support Center, in Alexandria, Virginia (TC). He complained
that the agency discriminated against him on the bases of sex and age
(D.O.B. 10/6/1929) when, in September 1997, his position was one of
three positions abolished as part of an agency Business Based Action
(BBA), while 18 positions were retained. Complainant accepted another
position in a different department at a lower rate of pay.
The elimination of complainant's position (and the two others) came
about due to a reorganization of the TC, where he worked as one of 21
instructors; complainant co-taught courses on basic financial management.
The manager of the TC (M1) stated that 18 instructors were to be retained
and divided into three teams of six instructors with one administrative
support person under the direction of a Chief. In considering which three
instructor slots--and complainant's in particular--would be eliminated,
M1 stated that he considered (a) the skills sets of the instructors and
(b) the performance appraisal histories of the instructors.<3> With
regard to (a), M1 explained in his Affidavit contained in the Report of
Investigation (ROI) that complainant did not possess the skill sets needed
or other instructors who were retained had them in �greater quality;�
however, he provided no clarification of what these skill sets were or an
explanation of what skills complainant lacked. As to (b), M1 testified
that complainant's appraisal history was �less than perfect.�
At the hearing, for the first time in the record--which took place
approximately eight years after the events at issue, M1 testified
that he also considered (c) classroom performance, a factor he had not
discussed in his affidavit.<4> As to (c), M1 stated that he had observed
complainant's performance, although he could not recall more than one
such occasion, and he was unable to delineate or describe what aspects
of complainant's classroom performance were deficient.<5>
In support of his reliance on (b), M1 provided a matrix of the performance
appraisal histories for the instructors. The AJ reviewed M1's �matrix'
for the seven instructors who had not received �outstanding' ratings for
each of the past four years, noting that M1's matrix showed only those
ratings received from TC managers, and, notwithstanding the importance he
placed on appraisal histories, M1 did not obtain the missing evaluations
or ratings from these employees' files when they worked in other areas
of the agency. As can be seen from the summary matrix below, complainant
received an outstanding rating for the past three years and an excellent
for the previous one to those. Of the five instructors retained from
this group, E1 (female, 54) had no evaluations from the TC for two
periods; E2 (male, 56) and E3 (female, 42) had no evaluations for three
periods; and E4 (female, 41) had no evaluations from the TC at all;
the fifth instructor, E5 (male, 64), had annual ratings of outstanding,
satisfactory, outstanding, and outstanding for the past four years.
AGE
SEX
96-97
95-96
94-95
93-94
Complainant
69
M
O
O
O
E
E0 (terminated)
58
M
O
O
O
E
E1
54
F
O
O
n/a
n/a
E2
56
M
O
n/a
n/a
n/a
E3
42
F
O
n/a
n/a
n/a
E4
41
F
n/a
n/a
n/a
n/a
E5
64
M
O
S
O
O
The AJ found that M1 was a �wholly incredible witness� because of
his interpretation of the matrix. AJ, p. 8. The AJ concluded that
M1's assessment that complainant had a �less than perfect� performance
history in comparison to employees who were retained was not borne out
by review of the matrix, nor did M1 explain how complainant's ratings
were trumped by the unknown ratings of E2, E3, and, most significantly,
E4, who had four out of four unknown ratings.
While he found that the matrix was sufficiently specific for the agency to
meet its burden to articulate a legitimate, nondiscriminatory reason for
its actions, the AJ held that M1's reliance on the matrix was �arbitrary
and illogical.� AJ, p. 8. The AJ concluded that M1's reliance on
performance histories was unworthy of credence; that complainant was 69,
the oldest instructor; that the other instructors removed were ages 58
(E0) and 54 (E01);<6> that the other two instructors who were terminated
were eliminated due to retirement eligibility; and that age-related
comments were made by an employee involved in reorganization planning.
Based on these findings, the AJ found that complainant demonstrated that
the agency's articulated reasons were not its true reasons and that it
discriminated against complainant based on his age.
The AJ concluded that the agency was motivated by complainant's age,
�based on the combination of unbelievability and the evidence of age
animus.� AJ, p. 11. In relief, the AJ awarded complainant placement
in the position of instructor, or a substantially equivalent position,
retroactive to the date he was reassigned, and back pay for the
difference in salary. In addition, the agency was ordered to post a
non-discrimination notice at the TC. In considering whether the agency
discriminated against complainant based on sex, the AJ stated that he was
�not persuaded� and noted that some of the instructors retained were male.
AJ, p. 10.
Complainant's Appeal
In his appeal brief, complainant argued for a finding of discrimination
based on sex, in that, reliance on the analysis found in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), was applicable for reaching
a finding of sex discrimination, as shown by the AJ's conclusion that
the agency's articulated reason for retention of E4 over complainant
was pretext. Complainant also contended, citing to Connecticut v. Teal,
457 U.S. 440 (1982), that the agency cannot be excused from discrimination
based on sex because it treats some males better; that any requirement to
prove animus by direct evidence in St. Mary's Honor Center v. Hicks, 509
U.S. 502 (1993), was overruled by Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); that complainant need not show that sex was
the sole motivating factor but one factor in the agency's decision;
and that the AJ's finding based on age applied equally to a finding that
gender played some role in the selections for elimination.
Analysis
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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). The Commission finds that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and law. After a careful review of the record,
we find that the AJ's ultimate decision that the agency discriminated
against complainant based on age, but not sex, is correct. We do not
agree with complainant's argument that a finding of sex discrimination is
reasonable given the facts of this matter and M1's inability to articulate
the agency's reasons for its actions. Instead, we remain in agreement
with the AJ's conclusion that complainant did not demonstrate that the
agency's reasons for it's actions were based on sex. In this regard,
we note that the AJ's finding of age discrimination was based on the
combination of not believing the agency's reasons and the evidence of
age animus. There was no such evidence of animus based on sex.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED. The agency is directed
to comply with the Order below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
A. Within sixty (60) days of the date this decision becomes final,
the agency shall offer complainant reinstatement to his former position
as an Instructor in the Training Center, or to an equivalent position
acceptable to him, retroactive to September 22, 1997, and including all
seniority and benefits of the position.
B. For the period from September 22, 1997, through the date complainant is
offered reinstatement, the agency shall determine the appropriate amount
of back pay with interest and other benefits due complainant in accordance
with this decision, pursuant to 29 C.F.R. � 1614.501, no later than sixty
(60) calendar days after the date this decision becomes final.<7> The
complainant shall cooperate in the agency's efforts to compute the amount
of back pay and benefits due, and shall provide all relevant information
requested by the agency. If there is a dispute regarding the exact
amount of back pay and/or benefits, the agency shall issue a check to
the complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The complainant may petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled �Implementation of the Commission's Decision.�
C. Within sixty (60) days of the date this decision becomes final, the
agency is directed to provide eight (8) hours of EEO training for M1,
and four (4) hours of training for all other managers and supervisors who
participated in the decision to remove complainant, to the extent that
they remain employed with the Department of the Army in any position.
Such training should address EEO requirements and these employees'
responsibilities with respect to eliminating discrimination in the federal
workplace under the equal employment opportunity laws, placing special
emphasis on the prevention and elimination of discrimination based on age.
The Commission does not consider training to be a disciplinary action.
D. Within sixty (60) days of the date this decision becomes final, the
agency is directed to consider appropriate disciplinary action against
M1 and all other managers who participated in the decision to remove
complainant to the extent that they remain employed with the Department
of the Army in any position, and report its decision. If the agency
decides to take disciplinary action, it shall identify the action taken.
If the agency decides not to take disciplinary action, it shall set
forth the reason(s) for its decision not to impose discipline.
E. 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 back pay and other benefits due complainant,
and other evidence that all corrective action has been implemented.
Copies shall be sent to complainant and his representative.
POSTING ORDER (G0900)
The agency is ordered to post at the Training Center and satellite
facilities, if any, 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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
___04/26/07_______________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AN AGENCY OF THE UNITED STATES GOVERNMENT
This Notice is posted pursuant to an Order by the
United States Equal Employment Opportunity Commission dated
which found that a violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., has occurred
at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privilege of
employment.
The Department of the Army, Community and Family Support Center, supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under the law.
The Commission found that the agency engaged in discrimination based
on age with respect to the elimination of Instructor positions in
September 1997. The agency was ordered to remedy the employee by
providing reinstatement, back pay, attendant benefits, and training for
the responsible managers.
The Department of the Army, Community and Family Support Center, will
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all federal
equal employment laws and will not subject employees to discrimination
based on age.
The Department of the Army, Community and Family Support Center, will
not in any manner restrain, interfere, coerce, or retaliate against any
individual who exercises his or her right to oppose practices made
unlawful by, or who participated in proceedings pursuant to, Federal
equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614.1Due to a new data system, this case has been
re-designated with the above-referenced appeal number.
2Complainant withdrew his claim under the Rehabilitation Act, and it
will not be addressed in this decision.
3Criterium (b) is consistent with agency regulations which state that
the two previous annual appraisals must be considered; the regulations
also required that where no appraisal was available, the rating should
be considered �satisfactory.'
4Contrary to instructions, M1 destroyed his notes concerning the
reorganization, the decision to eliminate three instructor positions,
and the specific determination to remove complainant. M1 stated that one
of the instructors eliminated (male, 58) (E0) did not posses useful skill
sets; we note that this instructor had the identical performance history
as complainant. M1 stated that the third instructor was eliminated,
because he was eligible for retirement.
5Because the AJ found that the agency's reasons set out in (a) and (c)
were not sufficiently specific to afford complainant a full and fair
opportunity to demonstrate pretext,� we need not consider them further.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256
(1981) (The agency's explanation must �frame the factual issue with
sufficient clarity so that [complainant] will have a full and fair
opportunity to demonstrate pretext.�)
6M1 stated that both E0 and E01 (male, 54) were terminated, since they
were eligible for retirement; in addition, M1 stated that E01 lacked
the skill sets required.
7If complainant has retired from the agency, then the back pay period
will cut off at his date of retirement.