01987010roedell
01-30-2001
Raymond F. Roedell, Jr., Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Raymond F. Roedell, Jr. v. Department of the Army
01987010
January 30, 2001
.
Raymond F. Roedell, Jr.,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01987010
Agency No. BKEK9703H0040
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD), concerning his 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.<2>
Complainant alleged that he was discriminated against based on his sex
(male) and disability when he was removed from his position. For the
reasons that follow, the agency's FAD is affirmed.
BACKGROUND
The record reveals that complainant was hired as a Librarian (Medical
Science), GS-1410-09, effective October 15, 1996, at the agency's
Reynolds Army Community Hospital, U.S. Army Field Artillery Center,
Fort Sill, Oklahoma. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on March 6, 1997. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an
EEOC Administrative Judge (AJ) or, alternatively, to receive a final
decision by the agency. Complainant requested a hearing before an AJ.
In July 1996, complainant submitted an application for the position
of Librarian (Medical Science), GS-1410-09, at the Fort Sill Reynolds
Army Community Hospital. The complainant's application included the
following question: �During the last 5 years, were you fired from any job
for any reason, did you quit after being told that you would be fired,
did you leave any job by mutual agreement because of specific problems,
or were you debarred from Federal employment by the Office of Personnel
Management?� The complainant answered �yes� and provided the following
explanation: �Helene Fuld School of Nursing, New Jersey Hospital,
1/7/94 - 9/17/94, Mutually agreeable out of court settlement with no
disclosure clause. Requested by Helene Fuld/West Jersey Hospital.�
At the agency's request, the Office of Personnel Management (OPM)
conducted a background investigation on the complainant to determine
his suitability for federal employment. An inquiry was sent to the
City of Philadelphia's Department of Human Services, which was listed
by the complainant as a previous employer from September to November
1995. The response returned to OPM stated that the complainant was
�discharged for unfavorable employment or conduct� and explained that
�[complainant] was rejected during probation as a Social Worker Trainee.
See attached notice[.]� The attached Report of Separation indicated
that the complainant's type of separation was �rejection� for the stated
reasons of: �(1) Failure to follow supervisor's recommendation concerning
appropriate casework methods and practices; (2) Argumentative reference
corrective measure as offered by supervisor; (3) Inability to transfer
training concept into practice; and (4) Inability to maintain required
case confidentiality.� OPM reported the information to the agency.
After receiving the information from OPM, the selecting official
(female) made the decision to propose to terminate complainant during
his probationary period.<3> The selecting official explained that the
Librarian position was basically autonomous, and she needed a great deal
of trust in the individual who occupied that position. She stated that
before interviewing complainant, by use of video conference, she had
reservations about hiring him based on his disclosure on his application
about his out-of-court settlement with the Helene Fuld School of Nursing.
With this additional evidence of an unfavorable separation of employment
and failure to report it on his application, the selecting official
indicated she did not have the required trust in complainant. By letter
dated January 6, 1997, the selecting official proposed that complainant
be terminated. Complainant responded to the notice and both he and
his attorney attended a meeting with the terminating official (male).
Complainant and his attorney asserted that the complainant's rejection
during his probationary period did not constitute a termination or a
mutual agreement to leave, and that there was no intent to deceive.
The terminating official (male) upheld the proposed removal, and
complainant was terminated effective February 18, 1997, during his
probationary period.
The AJ issued a summary decision without a hearing, on the grounds that
no material facts were in dispute. The AJ found that complainant met
the definition of a qualified individual with disability because he
had a hearing impairment (fifty percent hearing loss), which severely
limited his ability to hear, and a heart condition (two heart attacks
in June 1996), for which he had some restrictions, and he was able to
perform the functions of the position. The AJ, however, found that
complainant nevertheless failed to establish a prima facie case of
discrimination on the basis of either sex or disability. The AJ emphasized
that complainant failed to present any evidence of similarly situated
persons who were treated differently from complainant. The AJ also
indicated that the other facts of record did not lead to an inference
that complainant's termination was caused by discrimination based on
complainant's sex or disabilities. Nevertheless, the AJ found that
the agency articulated a legitimate, non-discriminatory reason for its
actions, i.e., complainant's deceptiveness and intent to conceal past
derogatory employment information in his application raised questions as
to the ability to trust complainant. Complainant still argued, however,
before the AJ that he not been �fired� and did not �mutually agree to
leave� but rather left �because there was no other recourse.� AJ Decision
at 12. The AJ nevertheless found that the evidence failed to support
complainant's assertion that the agency's legitimate, non-discriminatory
reason was a pretext for discrimination.
The agency, in its FAD, adopted the AJ's recommended finding of no
discrimination for the reasons contained in her decision. The FAD,
however, indicated that the termination resulted from complainant's
�failure to report a termination from a previous position which was an
intentional falsification of this application.� FAD at 1.
On appeal, complainant argues that he did not intend to deceive the
agency in responding to the question at issue.<4> Complainant emphasizes
the distinction between rejection and being fired, pointing out that
under rejection complainant could request unemployment assistance and
the City of Philadelphia would not contest it, whereas under a firing,
the City of Philadelphia would contest the unemployment claims. Also,
complainant submitted an administrative finding of fact and conclusions of
law from the Pennsylvania Unemployment Compensation Board, which concluded
that the agency had not met its burden of proof that he was removed for
willfully falsifying the information on his application for employment,
and approved unemployment compensation.<5> Complainant emphasizes that he
was not fired, and that he did not mutually agree to quit. In addition,
complainant indicated that when he met the selecting official for the
first time she did a �double take� as if she was thinking she hired the
wrong person. Complainant also emphasizes that he had been working at
the job, and there had been nothing wrong with his work. Complainant
further points out that his replacement was a woman. The agency did not
respond to the appeal.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment under Title VII are
examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). Prewitt v. USPS,
662 F.2d 292 (5th Cir. 1981) (disability cases). A complainant must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited reason was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
After the agency has offered the reason for its action, the burden returns
to the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
In order to establish a prima facie case of discrimination, complainant
may show that he is a member of a protected group and that he was
treated less favorably than other similarly situated employees outside
his protected group. See Potter v. Goodwill Industries of Cleveland,
518 F.2d 864, 865 (6th Cir. 1975). Complainant may also set forth
evidence of acts from which, if otherwise unexplained, an inference of
discrimination can be drawn. Furnco, 438 U.S. at 576.
Although the initial inquiry of discrimination usually focuses on whether
the complainant has established a prima facie case, following this order
of analysis is unnecessary when the agency has articulated a legitimate,
nondiscriminatory reason for its actions. See Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In this case,
even assuming, arguendo, that complainant has established a prima facie
case, we find that he, nevertheless, has failed to prove discrimination.
We find that the agency articulated a legitimate, nondiscriminatory reason
for complainant's removal, i.e., �his failure to report a termination
from a previous position which was an intentional falsification of
his application.� FAD at 1. It is thus the complainant's burden to
establish by the preponderance of the evidence (more likely than not),
that the agency's articulated nondiscriminatory explanation for its
action was a pretext for discrimination. In the Commission's view,
complainant has failed to meet his burden to show that the agency's
articulated nondiscriminatory explanation was pretext.
The Commission can not second guess an employer's business decisions
but can focus only on an employer's motivation for such decisions.
Burdine, 450 U.S. at 259. The record substantiates that the animus
against complainant resulted when the agency was informed by OPM
of alleged misstatements by complainant in his application. Whether
complainant intentionally falsified his application is not necessarily
the determinative question. Although the fact finder may decide to
infer discrimination, to the extent the evidence may show the agency's
articulated reason to be untrue, a finding of discrimination is not
necessarily compelled. See Commission's Enforcement Guidance on
St. Mary's Honor Center v. Hicks at 6 (April 12, 1994). Certainly,
as the AJ found, complainant's response to the question at issue
was deceptive in the eyes of the agency, including the selecting
official and the terminating official. The agency was not unreasonable
in believing that complainant had been deceptive in a material way.
The circumstances under which complainant left his prior position were
certainly negative and unfavorable. The agency was not unreasonable in
believing such omitted information to be relevant in its hiring decision.
In any event, we do not believe the agency was unreasonable in believing
that complainant intentionally falsified his application.
Complainant indicated that when he met the selecting official for the
first time she did a �double take� as if she was thinking she hired the
wrong person. According to complainant, this infers discrimination. To
the contrary, the AJ found this did not lead to the conclusion that
discrimination was confirmed. Furthermore, the selecting official did not
need to look at complainant to know he was male, since his first name is a
common male name. Moreover, complainant does not suggest that looking at
him would tell her he was a person with a disability. To the contrary,
complainant suggested that the selecting official already knew he was
a person with a disability. Indeed, there has been no other showing by
complainant of perceived animus against him or any other person on the
basis of sex (male) or disability by the agency at complainant's location.
Complainant had been working for the agency approximately four months
before his termination, and this was time enough for such animus, on
the basis of sex or disability, to manifest itself.
Complainant also emphasizes that he had been working at the job, and there
had been nothing wrong with his work. Complainant further points out that
his replacement was a woman. When juxtaposed with the other evidence
of record, as discussed above, we do not agree that discrimination has
been shown. The Commission accordingly finds that complainant failed
to present evidence that more likely than not, the agency's articulated
reason for its action was a pretext for discrimination.
CONCLUSION
We AFFIRM the agency's finding of no discrimination. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and evidence not specifically addressed
in this decision, we AFFIRM the agency's final decision, because the
Administrative Judge's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 30, 2001
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3 It is unclear why complainant was hired before OPM's background
investigation was completed.
4 Complainant did not question the AJ's issuance of a summary decision,
and thus does not appear to question the AJ's finding that there was no
dispute of material facts, requiring a hearing.
5 It is unclear how the Pennsylvania Unemployment Compensation Board
got involved in complainant's unemployment compensation claim from his
position at Fort Sill in Oklahoma.