David B. Rehbein v. Department of the Treasury
05A50666 and 05A50667
March 15, 2006
.
David B. Rehbein,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Request Nos. 05A60666 and 05A50667
Appeal Nos. 01A32184 and 01A43703
Agency Nos. 00-4029; 99-4073; 98-4020; and 98-4133
Hearing Nos. 350-99-8276X; 320-2003-0866; and 340-AO-3269X
DENIAL OF REQUEST FOR RECONSIDERATION
The Department of the Treasury (agency) timely requested reconsideration
of the decision in David B. Rehbein v. Department of the Treasury, EEOC
Appeal No. 01A32184 (February 15, 2005). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
BACKGROUND
The record reflects that complainant alleged 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. Specifically,
complainant alleged in four (4) complaints between 1997 and 1999 that the
agency discriminated against him on the bases of his race (Caucasian),
gender (male), and age (D.O.B. 8/30/50) and in retaliation for prior
EEO activity when: (1) on May 5, 1997 complainant was denied a temporary
management assignment; (2) he was denied certification for management in
June 1997; (3) he was not selected for the position of Supervisory Revenue
Officer under Vacancy Announcement No. 0965 S98No46B in March 1998;
(4) he was not selected for Supervisory Revenue Officer under Vacancy
Announcement MEL-SC-98-0275 in August 1998; (5) he was not selected for
Supervisory Revenue Officer under Vacancy Announcement MEL-SC-99-197
in July 1999; (6) he was not selected for Supervisory Revenue Officer
under Vacancy Announcement MEL-SC-00-011 in December 1999; (7) he was
subjected to a hostile work environment because he engaged in protected
EEO activity.
Initially addressing complainant’s allegations I and II (Agency
Nos. 98-4020 and 98-4133), an EEOC Administrative Judge (AJ) in the
Commission’s Denver District Office found that complainant failed
to establish discrimination on his allegations of non-selection
for a temporary management assignment in March of 1998. Addressing
complainant’s allegations III and IV (Agency Nos. 00-4029 and 99-4073),
an AJ in the Commission’s Los Angeles District Office granted the
agency’s motion for summary judgment in part. The AJ held a hearing
on the issue of whether the agency discriminated against complainant by
not selecting him for the position of Supervisory Revenue Officer under
Vacancy Announcements MEL-SC-98- 275, MEL-SC-99-197 and a position in
December 1999, because of retaliation. She also considered the issue of
whether he was subjected to a hostile work environment in retaliation for
his EEO activity. The AJ found that complainant failed to establish a
prima facie case of reprisal in connection with the August 1998 selection
because those on the interview panel were unaware of his EEO activity.
Regarding complainant’s claim that management’s actions leading up to
the non-selection created a hostile work environment, the AJ concluded
that there was no evidence of a motive to retaliate against complainant.
The AJ also found that complainant failed to establish a prima facie
case of reprisal regarding his other allegations of non-selections.
Pursuant to complainant’s appeal of the AJ’s decisions, the Commission
initially found that regarding complaints III and IV, the AJ’s decision
was not supported by substantial evidence in the record. We further found
that regarding complaints I and II, the AJ’s grant of summary judgment
was error. In both cases we found that the AJs ignored direct evidence of
retaliation for complainant’s EEO activity which would have changed their
analyses of these complaints. The Commission also found that the AJs
ignored evidence of destruction of evidence relevant to these complaints
as well as evidence that the agency’s main witness, S1, made false
statements to EEO investigators. In so finding, the Commission found
that the record disclosed that there was evidence in both investigative
files of destruction of evidence relevant to the complaints. The AJ
(Complaints III and IV) heard testimony from the EEO counselor about the
destruction but did not address its impact on her analysis of the case,
and we found this was error. Addressing the AJ’s grant of summary
judgment in complaints I and II, the Commission found that summary
judgment was not appropriate on the issue of retaliation. However, we
declined to remand these cases for a hearing at this time due to the
significant lapse of time between the filing of the first complaint and
the decision on appeal. The Commission then found that based on the
record, complainant demonstrated by a preponderance of the evidence that
the decision not to certify him for management beginning in June 1997
and his non-selection for a position as a supervisory revenue officer
were based on retaliation for his threats to file an EEO complaint and
his pursuit of discrimination claims. We further concluded that the
preponderance of the evidence did not demonstrate discrimination based
on complainant’s age, race or gender.
The agency then filed a request for reconsideration, alleging that the
Commission’s decision is based on several erroneous interpretations of
law and fact, and requesting that the decision be reversed. The agency
specifically contends that complainant’s allegations that were decided by
summary judgment be remanded for hearing (Agency Nos. 98-4020; 98-4133),
and the AJ’s decision in which a hearing was held should be affirmed
(Agency Nos. 00-4029; 99-4073). In the alternative, the agency contends
that the remedies ordered by the Commission be limited. Rather than
using June of 1997 as the date of complainant’s retroactive promotion,
the agency alleges that the retroactive promotion should begin no earlier
than August of 1998. Complainant responded, urging the Commission
to deny the agency’s request for reconsideration and find that the
Commission’s decision was not based on any erroneous interpretations of
material fact. The agency then responded to complainant’s arguments,
urging the Commission to affirm the AJ’s decisions as supported by
substantial evidence.
ANALYSIS AND FINDINGS
I. Agency Nos. 98-4020 and 98-4133 (Complaints I and II)
After careful review of the evidence of record and the arguments submitted
by the parties, the Commission again concludes that both of the AJ’s
decisions were in error. Addressing the agency’s contentions regarding
the AJ’s summary judgement decisions in complaints I and II, we note that
the Commission’s regulations provide that an AJ may issue findings and
conclusions without a hearing if “some or all material facts are not in
genuine dispute, and there is no genuine issue as to credibility.” 29
C.F.R. § 1614.109(g). The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the
substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court does not sit as a fact finder. Id. The evidence of the non-moving
party must be believed at the summary judgment stage, and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. A disputed
issue of fact is “genuine” if the evidence is such that a reasonable fact
finder could find in favor of the non-moving party. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D
103, 105 (1st Cir. 1988). A fact is “material” if it has the potential
to affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003). In the context of an administrative proceeding under Title VII,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed.
In finding that summary judgment was appropriate in this matter, the
AJ in complaints I and II determined that no genuine issue of material
fact remained that required an oral hearing and that complainant had
not offered any evidence that suggested discrimination or retaliation.
However, as stated in our prior decision, the record demonstrates that the
AJ was aware that the agency’s Inspector General (IG) was investigating
false statements made by complainant’s Supervisor (S1) during the
investigation. The record before the AJ contained a report from the
agency’s EEO counselor which stated that S1 admitted to destroying
missing evidence. We concur with the finding in our prior decision
that these factors should have afforded a reason to the AJ to hesitate
before proceeding in a summary fashion, and thus summary judgment was
not appropriate. Further, we concur with the prior decision’s finding
that there was direct evidence in the record of retaliation on the part of
the agency regarding the agency’s denial of certification for a management
position in June of 1997. We also concur with our prior finding that an
adverse inference could be made against the agency for the destruction
of evidence which would have reflected unfavorably on the agency, as it
contained evidence of an intent to retaliate against complainant for his
prior EEO activity. As such, we find no error in the prior decision’s
finding that complainant demonstrated by a preponderance of the evidence
that the agency’s decision not to certify him for a management position
beginning in June of 1997 and his subsequent non-selection for a position
as a supervisory revenue officer were due to retaliation for his threats
to file an EEO complaint and his pursuit of discrimination claims.
II. Agency Nos. 00-4029 and 99-4073 (Complaints III and IV)
After a consideration of the agency’s contentions in its request for
reconsideration, the Commission concurs with the finding in our prior
decision that the AJ erred in concluding that S1 had no significant
input into complainant’s consideration for supervisory revenue position.
As previously found, the AJ’s finding was not supported by substantial
evidence in the record. As we stated, the record reflects that other
selecting officials spoke with S1 in June of 1998 and in August of
1998 prior to making their selections.<1> After speaking with S1 about
selecting complainant for non-competitive slots, neither official chose
him for job openings. We concur with the finding that the evidence
reflected that S1’s discriminatory animus, more likely than not, tainted
the selection process.
CONCLUSION
As such, after reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal Nos. 01A32184 and 01A43703
remains the Commission’s final decision. There is no further right of
administrative appeal on the decision of the Commission on this request.
ORDER (DO403)
To the extent the agency has not already done so, it is ordered to take
the following remedial action:
(1) Within sixty (60) days of the date this order becomes final, the
agency will promote complainant to the position of Supervisory Revenue
Officer GS-13, or if not available, a substantially equivalent position
in terms of responsibility and pay. This appointment will be retroactive
to the effective date of the selection for the position located in San
Diego advertised between May and June 1997;
(2) The agency shall pay complainant back pay retroactive to June 1997
or the effective date of its selection for a supervisory position in San
Diego. The agency will determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. §
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. 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.”
(3) The agency will expunge any and all agency records regarding or
referring to the denial of certification of complainant for management
from May 1997 forward which were found to be discriminatory and any other
agency records or memoranda which referred to the discriminatory conduct.
(4) The agency will require S1 and S2 to take 8 hours of training in the
provisions of Title VII specifically the prohibition against retaliation.
The Commission does not consider training to be a disciplinary action.
(5) The agency will consider taking disciplinary action against S1,
who was responsible for the decision not to certify complainant for
management, and S2, who authored a memorandum from which an adverse
inference of discriminatory intent was drawn. The agency shall 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.
(6) The issues of compensatory damages, attorney’s fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant, through
counsel, shall submit a request for attorney’s fees and costs in
accordance with the Attorney’s Fees paragraph set forth below. No later
than sixty (60) days after the agency’s receipt of the attorney’s fees
statement and supporting affidavit, the agency shall issue a final agency
decision addressing the issues of attorney’s fees, costs, and compensatory
damages. If complainant disputes the agency’s decision, complainant may
request a hearing on the issue of compensatory damages only. The agency
shall submit a copy of the final decision to the Compliance Officer at
the address set forth below.
(7) The agency will post a notice as set forth below.
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,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Southwest District offices 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.
ATTORNEY’S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney’s fees incurred in the processing of the complaint. 29
C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid by the
agency. The attorney shall submit a verified statement of fees to the
agency — not to the Equal Employment Opportunity Commission, Office of
Federal Operations — within thirty (30) calendar days of this decision
becoming final. The agency shall then process the claim for attorney’s
fees in accordance with 29 C.F.R. § 1614.501.
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.
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
March 15, 2006
__________________
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
______________________________
Equal Opportunity Assistant1 In June of 1998 and August of 1998,
complainant had filed two additional (2) EEO complaints.
