01A03727Roach
03-14-2002
William M. Roach, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
William M. Roach v. Department of the Army
01A03727
March 14, 2002
.
William M. Roach,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A03727
Agency No. BGASF09604G0390
Hearing No. 100-97-7336X
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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that he was discriminated against on the basis of reprisal when
(1) in April 1995, he received performance objectives that he perceived
to be unfair; (2) in June 1995, he received a mid-point counseling
performance review which he also perceived to be unfair; and (3) in
February 1996 he received an annual performance evaluation of �fair�
for the period from November 1, 1994, to October 31, 1995.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Financial Analyst, GS-09, in the Special Accounting Branch,
Accounting Division, of the Finance and Accounting Office of the Military
District of Washington, D.C., when on January 22, 1995, he was detailed
out of the Special Accounting Branch and into the Debt Management Section.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on June 27, 1996.
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.
Complainant, upon being detailed into the Debt Management Section, was
given proposed performance standards which were written by Manager A,
Supervisor of the Debt Management Section, complainant's immediate
supervisor, and by Manager B, Chief of the Accounting Division.
The standards called for the complainant (1) to serve as principal
assistant to Manager A; (2) maintain Fiscal Year 1995 (FY95) travel
advance accounts in current status and to follow-up when accounts were
not closed within 45 days after travel; (3) analyze the flow of FY95
travel advances through the entire accounting process from issuance
to reconciliation and identify procedural flaws and weaknesses; (4)
assist the other accounting technicians; and (5) help achieve travel
advance reduction goals (which were unspecified). The standards were
made effective by the signature of the Deputy Director of the Finance
and Accounting Office.
Complainant received a mid-point performance evaluation on June 13, 1995.
The evaluation stated that complainant was performing satisfactorily
under standards (1) and (4). However, it stated that FY95 travel
advances under standard (2) had increased substantially, and complainant
was directed to clear all advances issued on March 15, 1995, or earlier.
Complainant was also directed to submit written reports on procedures and
systemic changes needed to improve the accounting system. In September
1995, complainant went on leave without pay and subsequently transferred
to a position in Charleston, South Carolina.
Complainant's annual performance evaluation covered the period November
1, 1994, through October 31, 1995. The evaluation rated complainant
�fair� and �needs improvement� in one or more objectives. This was the
next to the lowest evaluation category, just above �fails.� The box
for comments by the initial rater, Manager A, stated, �[complainant]
did not meet the established goals for FY 95 advance accounting.� The
box for comments by Manager B, the intermediate rater, stated, �Employee
needs improvement in meeting and maintaining delinquent travel advance
collection and clearance goads . . . [and] in maintaining FY 95 travel
advance accounting in current status.� The box for comments by the
Deputy Director of the Finance and Accounting Office, the senior rater,
stated �[k]nowledge and skills were not applied in an effective manner
to meet the goals and objectives established.�
The AJ found that complainant was not the victim of discrimination with
respect to the first and third allegations and dismissed the second
allegation on the ground that it failed to state a claim.
The AJ found that complainant presented no testimony or evidence that
the standards were substantively flawed, so as to make them suspect.<1>
AJ Decision at 6. The AJ further found that complainant did not present
any other evidence to show that the content of the standards was motivated
by reprisal. Id. The AJ then found that complainant failed to show that
complainant's evaluation was issued in reprisal for a prior EEO complaint.
The AJ based his finding on the documentation in complainant's midpoint
review that complainant did not make adequate progress toward resolving
FY95 travel advances and the credible testimony of Manager B and the
Deputy Director of the Finance and Accounting Office that complainant
failed to do so throughout the time he was in the Debt Management Section.
Id. The AJ finally found that complainant also failed to show that the
standards were so unrealistic that they could not be met or that he had
in fact met the standards to merit a �fully successful� evaluation. Id.
In its FAD, the agency adopted the AJ's decision. On appeal, complainant
did not submit a supporting brief.
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).
In general, claims alleging reprisal discrimination examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973) and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F.Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases).
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).
To establish a prima facie case of reprisal discrimination,
complainant must show that (1) he engaged in prior protected activity;
(2) the acting agency official was aware of the protected activity;
(3) he was subsequently disadvantaged by an adverse action; and, (4)
there is a causal link. The causal connection may be shown by evidence
that the adverse action followed the protected activity within such a
period of time and in such a manner that a reprisal motive is inferred.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,
1996) (citations omitted).
The statutory retaliation clauses prohibit any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity.
Petty slights and trivial annoyances are not actionable, as they are
not likely to deter protected activity. More significant retaliatory
treatment, however, can be challenged regardless of the level of harm.
As the Ninth Circuit has stated, the degree of harm suffered by the
individual �goes to the issue of damages, not liability.� Hashimoto
v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of
Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) (�the questions of statutory
violation and appropriate statutory remedy are conceptually distinct.
An illegal act of discrimination�whether based on race or some other
factor such as a motive of retaliation � is a wrong in itself under
Title VII, regardless of whether that wrong would warrant an award of
[damages]�). The retaliation provisions set no qualifiers on the term
�to discriminate,� and therefore prohibit any discrimination that is
reasonably likely to deter protected activity. A violation will be found
if an employer retaliates against a worker for engaging in protected
activity through threats, harassment in or out of the workplace, or any
other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees. EEOC Compliance Manual
on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998).
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). Even assuming,
arguendo, that complainant has established a prima facie case, we find
that he, nevertheless, has failed to prove discrimination.
The AJ found, based on the record, that complainant presented no testimony
or evidence that the standards were substantively flawed, so as to make
them suspect. AJ Decision at 6. The AJ further found that complainant
failed to show that the standards were so unrealistic that they could not
be met or that complainant had in fact met the standards. Id. The AJ
based his finding on the determination in complainant's midpoint review
that complainant had not made adequate progress toward resolving FY95
travel advances and the credible testimony of Manager B and the Deputy
Director of the Finance and Accounting Office that complainant failed to
do so throughout the time he was in the Debt Management Section. Id.
The credibility determinations of the AJ are entitled to deference due
to the AJ's first-hand knowledge, through personal observations, of the
demeanor and conduct of the witnesses at the hearing. Esquer v. United
States Postal Service, EEOC Request No. 05960096 (September 6, 1996);
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July
26, 1990). The AJ additionally found that complainant failed to
present any other evidence to show that the content of the standards
was motivated by retaliatory intent. AJ Decision at 6. Finally, the AJ
relied on testimony that complainant exhibited a negative attitude, i.e.,
lack of motivation, toward his new responsibilities. Id. Complainant,
on appeal, has presented no evidence to the contrary.
While the AJ did not specifically address the merits of complainant's
mid-point counseling review allegation, the AJ's findings nevertheless
addressed complainant's performance deficiencies during the period of time
covered by the mid-point counseling review, as discussed above. Moreover,
as previously indicated, the mid-point counseling performance review
was inextricably intertwined with the annual performance evaluation.
The AJ recognized that Manager A, complainant's immediate supervisor,
recommended complainant for a fully successful rating. AJ Decision at 6.
However, the AJ emphasized that Manager A's testimony did not show that
complainant met the standards, but rather that Manager A sympathized with
complainant, because complainant was new to the job. Id. Even Manager
A indicated that there were certain portions of complainant's job that
he felt complainant could be doing better, and that he had discussed
this with Manager B. Tr. 68. Manager A also acknowledged that he was a
personal friend of complainant. Tr. 49. Manager A did not testify that
either Manager B or the Deputy Director of the Finance and Accounting
Office had retaliatory animus against complainant.
The Commission further notes that an employer has the discretion to
determine how best to manage its operations and may make decisions
on any basis except a basis that is unlawful under the discrimination
statutes. Furnco Construction Co. v. Waters, 438 U.S. 567 (1978); Nix
v. WLCY Radio/Rayhall Communications, 738 F.2d 1181 (11th Cir. 1984).
Complainant has failed to sufficiently show that the agency's actions
were unreasonable in terms of business judgment, and thus, without more,
complainant's argument that the agency's articulated reasons for its
actions were a pretext for discrimination is unproven. Accordingly,
substantial evidence supports the AJ's finding that complainant was not
discriminated against based on reprisal.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb the
AJ's decision. Therefore, after a careful review of the record, we AFFIRM
the FAD.
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
March 14, 2002
__________________
Date
1 The AJ acknowledged that complainant had suggested that the standards
were not objectively measurable, but the AJ did not find the suggestion
to be persuasive. AJ Decision at 5.