0520110023
06-29-2012
Carroll J. Milton, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.
Carroll J. Milton,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Bureau of Engraving and Printing),
Agency.
Request No. 0520110023
Appeal No. 0120102101
Agency No. TD-09-0233-F
DENIAL
Complainant timely requested reconsideration of the decision in Carroll J. Milton v. Department of the Treasury, EEOC Appeal No. 0120102101 (August 24, 2010). 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).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
BACKGROUND
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity when, beginning on April 3, 2008, the Agency failed to conduct a desk audit to determine whether his job classification was consistent with his work assignments.1
The appellate decision affirmed the Agency's final decision, which found that Complainant failed to prove that he was subjected to discrimination as alleged. Initially, the appellate decision declined to address Complainant's contention that Agency legal representatives improperly intruded on the EEO investigative process, finding that he was alleging dissatisfaction with the processing of his pending complaint. Next, the appellate decision declined to consider management's deposition testimony, finding that it was new evidence submitted on appeal. Further, the appellate decision found that the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, the delay in conducting Complainant's classification action was the result of a heavy workload and staff shortages in the Human Resources (HR) department. Finally, the appellate decision found that Complainant failed to show that the Agency's articulated reasons were a pretext for race, sex, or reprisal discrimination.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant essentially argued that the appellate decision clearly erred in not considering management's deposition testimony because: (1) the depositions, submitted as part of his November 13, 2009 Amended Pre-Hearing Conference Report, were already part of the record; and (2) the excluded deposition testimony establishes pretext by calling into question management's credibility and the legitimacy of its articulated reasons. Moreover, Complainant asserted that the HR department completed the classification actions of two Caucasian employees (C1 - female, C2 - male)2 during the period when his request was pending.
Finally, Complainant argued that the appellate decision misinterpreted the issue of improper Agency intrusion into EEO investigations. Complainant explained that he had "[n]o issue with the manner in which his complaint was processed." Complainant clarified that he was concerned with senior management's policy requiring all supervisors and managers to have Agency legal representatives review and correct their EEO affidavits before submitting them to the EEO Investigator.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request fails to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
As an initial matter, we find that the appellate decision erred in not considering the deposition testimony. Contrary to the appellate decision's determination that the deposition testimony was new evidence submitted by Complainant, we find that the deposition testimony was already part of the record. Documentary evidence reflects that Complainant had previously submitted the deposition transcripts to the AJ as part of his November 13, 2009 Amended Pre-Hearing Conference Report.
Although the appellate decision erred in excluding the deposition testimony, we find that reconsideration is unwarranted because the appellate decision did not clearly err in its ultimate finding of no discrimination. In his appeal brief, Complainant argued that inconsistencies between the deposition testimony and the report of investigation show that the Agency's articulated reasons were pretextual. Upon review, we reject Complainant's argument because either: (a) the alleged inconsistencies are not really inconsistencies; or (b) the cited inconsistencies are not material in terms of establishing pretext.
First, Complainant argued that the HR Manger (HRM) was not credible because she provided contradictory testimony about her knowledge of his prior EEO activity. In her May 11, 2009 affidavit, HRM averred that she was not aware of any prior EEO activity by Complainant. In her November 2, 2009 deposition, HRM testified that she did not know about Complainant's prior EEO activity when she was first assigned to his classification action, but found out about it at some point afterwards. We find that this testimony is not necessarily inconsistent. In so finding, we note that, because HRM did not specify when she learned of Complainant's EEO activity in her November 2, 2009 deposition, it is possible that she found out about it between May and November 2009.
Second, Complainant argued that the Human Resources Specialist's (HRS) deposition testimony contradicted HRM's affidavit testimony regarding who in the HR department could complete his classification action. In her deposition, HRS testified that any of the HR Specialists were qualified to do classification determinations. In her affidavit, HRM averred that she was the only other HR Specialist (other than HRS) with classification experience at the facility. Again we find that Complainant has not shown that this testimony is inconsistent. In so finding, we note that HRS testified about who in the HR department was qualified to do classification actions whereas HRM testified about who in the HR department had experience doing classification actions.
Third, Complainant argued that HRM's deposition testimony showed that the HR department was not understaffed in April 2008 when he initially requested a desk audit. In her deposition, HRM testified that the HR department had a full or sufficient staff until October 2008. We find that this testimony is not material in establishing pretext. In so finding, we note that the Agency articulated two reasons for not completing Complainant's classification action until May 2010: a heavy workload and staff shortages. Even if the HR department was fully staffed from April 2008 to October 2008, testimonial evidence reflects that the HR department was short staffed after October 2008. Moreover, Complainant has not refuted the Agency's explanation about the HR department's heavy workload.
Fourth, Complainant argued that documentary evidence contradicted C2's deposition testimony that Complainant's duties did not increase. We find that this testimony is not material in establishing pretext. In so finding, we note that HRM was responsible for completing Complainant's classification action. Complainant has not shown how questions surrounding C2's credibility affect HRM's credibility. Moreover, the record contains no evidence that C2 improperly influenced HRM with respect to Complainant's classification action.
Finally, Complainant argued that the Agency's articulated reasons were pretextual because HRM's deposition testimony showed that she completed classification actions for C1 and C2 while Complainant's classification was pending. In her deposition, HRM testified that she completed the other classification actions sooner because conducting a review of Complainant's engineer position was much more complex than conducting a review of C1 and C2's supervisory positions. We find that this testimony is not material in establishing pretext. In so finding, we note that HRM's testimony shows that she considered the complexity of the classification actions, not race, sex, or prior EEO activity, in determining which actions to complete first.
Agency's Role in EEO Investigations
Complainant asserted that the Agency's legal representatives improperly intruded on EEO investigations by reviewing and correcting management's EEO affidavits before submitting them to the EEO Investigator.
In support of his assertion, Complainant submitted a senior management official's March 23, 2007 affidavit from another case. The senior management official averred, in pertinent part, the following:
It is my policy that my managers obtain legal review of their affidavits in EEO investigations prior to submission to the investigator. Legal review of affidavits is a service provided by the Office of Chief Counsel and I expect my managers to take advantage of this service. My expectation is based on a couple of reasons. First, I take EEO complaints seriously and expect my managers to provide a full and complete accounting of facts and circumstances surrounding the allegations. Second, by its very nature, EEO investigations are part of a legal process, which may potentially subject this Agency to liability. Our attorneys are in the best position to ensure that the manager understands the allegations and has every opportunity to provide his or her side of the story.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Chapter 1, � III (November 9, 1999) states, in pertinent part, the following:
Heads of agencies must not permit intrusion on the investigations and deliberations of EEO complaints by agency representatives and offices responsible for defending the agency against EEO complaint. Maintaining distance between the fact-finding and defensive functions of the agency enhances the credibility of the EEO office and the integrity of the EEO complaints process. Legal sufficiency reviews of EEO matters must be handled by a functional unit that is separate and apart from the unit which handles agency representation in EEO complaints. The Commission requires this separation because impartiality and the appearance of impartiality is important to the credibility of the equal employment program.
We remind the Agency that it must avoid even the appearance that it is interfering with the EEO process. Participants in EEO investigations should be assured that they can give candid, truthful responses to investigators. Further, we note that the extent to which respondents have been prompted or instructed to give certain testimony by employer representatives can go to the heart of the witness's credibility. See United States v. Arias-Santos, 39 F.3d 1070, 1074 (10th Cir. 1994) (questions directed at revealing testimony of witness was coached clearly relevant to jury's assessment of reliability of that witness). Consequently, we strongly advise the Agency to henceforth avoid actions that create the appearance that it is influencing employees' responses to EEO investigations.3
CONCLUSION
After reviewing 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 No. 0120102101 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
_6/29/12_________________
Date
1 The Agency completed Complainant's classification action on May 6, 2010.
2 C1 and C2 were both supervisors. C2 was Complainant's immediate supervisor.
3 Because Complainant provided no evidence that such a review took place in this case, we find no reason to sanction the Agency's actions. We note that the senior management official's affidavit is from 2007 and that the EEO investigation in Complainant's case occurred in 2009.
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0520110023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520110023