05a01197
12-14-2000
Charles A. Gulden, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Charles A. Gulden v. Department of the Army
05A01197
12-14-00
.
Charles A. Gulden,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Request No. 05A01197
Appeal No. 01A01697
Agency No. EUR98-AR-0130-E
Hearing No. 100-99-7161X
DECISION ON REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Charles
A. Gulden v. Louis Caldera, Secretary, Department of the Army, EEOC
Appeal No. 01A01697 (July 13, 2000).<1> EEOC regulations provide that
the Commission may, in the exercise of its discretion, grant a request
for reconsideration if the party making the request demonstrates that
the appellate decision involved a clearly erroneous interpretation of
material fact or law, or that the decision will have a substantial
impact on the policies, practices, and operations of the agency. 29
C.F.R. � 1614.405(b).
Complainant filed a complaint in which he claimed that the agency
retaliated against him for participating in the processing of an EEO
complaint filed by a female co-worker. He identified the following
incidents as evidence of reprisal:
On an unspecified date, complainant's first-line supervisor (S1) allegedly
made arbitrary changes to his job description, which resulted in his
position remaining at GS-13; and
On July 17, 1997, S1 withheld a monetary performance award from
complainant.
The agency investigated the complaint and referred the matter to an
administrative judge (AJ), who held a hearing and issued a decision
finding no discrimination. The agency adopted the AJ's decision as its
final action, and the previous decision summarily affirmed.
Complainant challenges the AJ's determination that the preponderance of
the evidence does not support a finding of reprisal with respect to the
position description incident.<2> The AJ found that, while complainant
established a prima facie case of reprisal, he failed to show that the
agency's articulated reason for making changes to complainant's position
description was a pretext for a retaliatory motivation on the part of S1.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an administrative judge 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). A finding regarding whether or not retaliatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
To prevail on his reprisal claim, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). He must initially establish a
prima facie of reprisal by showing: (1) that he engaged in protected
EEO activity; (2) that the agency was aware of that activity; and (3)
that he was subjected to an adverse action at such a time or in such
a manner as to support a causal connection between the two events.
Frye v. Department of Labor, EEOC Request No. 05940764 (December 15,
1994). The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993). In this case, neither party contests the
AJ's findings that complainant established a prima facie case and that
the agency articulated a legitimate, nondiscriminatory reason for S1
making changes to complainant's position description. Our inquiry will
therefore focus only on whether the AJ's finding, that complainant failed
to establish pretext, is supported by substantial evidence of record.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997).
Complainant held the position of Morale, Welfare, and Recreation
(MWR) Manager, GS-13 at a U.S. military installation in England.
In February of 1997, he submitted paperwork to S1 to have the MWR
Manager position upgraded to GS-14. S1, in turn, submitted the
documents to his own immediate supervisor, S2, who was complainant's
second-line supervisor. S2 reviewed the paperwork and returned it
to S1 with instructions to revise the position description so that it
more accurately reflected the duties and supervisory responsibilities
of the position. Hearing Transcript (HT) 324. S2 indicated that he
reviewed the job description several times, and that he thought that
it identified supervisory responsibilities that were beyond the scope
of the MWR Manager. Investigative Report (IR) 60. S1 then returned the
paperwork to complainant for revision in accordance with S2's directions,
and to submit it directly to the personnel office. HT 324-25.
After complainant forwarded the reclassification application to the
personnel office, S1 received a telephone call from personnel specialist
W indicating the job description was not correct. HT 363. S1 met with
W and her supervisors E and B at the personnel office to discuss their
concerns. S1 testified that language describing the position as that of
the assistant director was inaccurate, and that a flow chart describing
the MWR Manager's line of authority was not correct. IR 108, 137; HT
325-27, 331. Since W would be out of the office for the next two weeks,
S1 immediately made the corrections and gave the corrected documents
to W, so that she could forward them to the classification specialists.
S1 signed the form for S2, as he normally did when S2 was unavailable. HT
327-28.
In finding that complainant failed to establish pretext, the AJ credited
the hearing testimony of S1 and E. W did not testify at the hearing,
but provided two written statements to the EEO investigator that were
neither signed nor sworn. In one of her statements, W indicated that
S1 called her requesting that she return complainant's reclassification
paperwork to him for corrections. IR 69. This conflicts with the hearing
testimony of S1 and E that it was the personnel office that initially
contacted S1 about discrepancies in that paperwork. In his request for
reconsideration, complainant argues that the AJ erroneously excluded
W's affidavits without first determining whether they were repetitious
or cumulative. On page (7) of her bench decision, the AJ stated:
�I note, however, that both affidavits by W in the investigative report
are not signed by her and that she was not called as a witness to testify
at the hearing. Accordingly, I do not give much weight to her unsigned
statements.�
Complainant completely mischaracterizes the AJ's treatment of W's
statements. Contrary to what complainant claims, the AJ did not exclude
those statements. Rather, she considered them in conjunction with
the hearing testimony of S1 and E, and credited them accordingly. What
complainant appears to be arguing is that the AJ abused her discretion in
crediting the statements of S1 and E, but not those of W. We disagree.
Credibility determinations of an administrative judge are entitled to
great weight. Universal Camera Corporation v. National Labor Relations
Board, 340 U.S. 474, 496 (1951); Embree v. Veterans Administration,
EEOC Request No. 05901054 (November 15, 1990). Complainant attempted to
undermine S1's credibility at the hearing by pointing out the conflict
between his testimony and W's affidavits regarding who first called
whom. Complainant acknowledged, however, that he could not explain
why W neither signed nor initialed her two affidavits. HT 359-62.
Moreover, W emphasized that, while S1 managed the situation poorly by
not informing complainant of the changes that he made to the position
description pursuant to instructions from the personnel office, the
reclassification application itself was processed correctly. IR 69-70.
In view of complainant's failure to discredit S1's testimony at the
hearing, and the corroboration of S1's testimony by E, we find no reason
to disturb the AJ's decision that complainant failed to prove his claim
of reprisal.
After reviewing the record in its entirety, we find that complainant's
request does not satisfy either criterion for reconsideration, and
accordingly, the request is denied. The decision of the Commission
in EEOC Appeal No. 01A01697 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 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.
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
_12-14-00________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On 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.
2In his reconsideration request, complainant does not contest the AJ's
findings and conclusions with respect to the withholding of the cash
award in July 1997.