[ v55 p1201 ]
55 FLRA No. 194
DEPARTMENT OF THE AIR FORCE
AIR FORCE MATERIEL COMMAND
WARNER ROBINS AIR LOGISTICS CENTER
ROBINS AIR FORCE BASE, GEORGIA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 987
DECISION AND ORDER
January 11, 2000
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent filed an opposition to the General Counsel's exceptions.
The complaint alleges that the Respondent violated sections 7116(a)(1), (2) and (4) of the Federal Service Labor-Management Relations Statute (the Statute) when two employees received low performance appraisals in April 1997, because they had filed grievances and had served as key witnesses in the investigation of three ULPs that involved their supervisor. The Judge found that the General Counsel had not established a prima facie case of discrimination and recommended that the complaint be dismissed.
The General Counsel excepted to the Judge's credibility determinations made in favor of the supervisor and to the Judge's finding that a prima facie case of discrimination had not been established. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommendations only to the extent consistent with this decision.
II. Background and Judge's Decision
The facts are fully set out in the Judge's decision and are only briefly summarized here.
The grievants are two of four procurement technicians who are responsible for ordering parts for certain directorates of the Warner Robins Air Logistics Center (ALC). In mid-August, 1996, they filed grievances challenging their appraisals for July 1, 1995 through June 30, 1996, as unfair and in violation of the collective bargaining agreement. [n1] Their supervisor denied both grievances. In September 1996, these grievances were settled. Under the terms of the agreement, the supervisor would cancel these August appraisals and re-evaluate both employees for the 1995-1996 year, based on their performance over a 90-day period, and in line with new performance plans that would be rewritten with the employees' input.
In early January 1997, the supervisor sent e-mails to both grievants requesting work reports by mid-January for re-evaluating their performance at the end of the month. Also, around January 7, 1997, the Union steward who handled the grievances for both employees visited the procurement office to deliver a copy of the settlement agreement to one of the grievants, who was not there at the time. The supervisor testified that, after discussing the matter with a labor relations specialist, she advised the steward to leave the work area since she had not received proper notice of his visit. Sometime after this incident, the supervisor allegedly told the grievant with whom the steward had attempted to meet, that the steward would get in trouble for visiting the work area.
On January 21, 1997, the Union filed three ULP charges with the FLRA Regional Director in Atlanta. The charges were based on the events in January noted above, namely, the supervisor's e-mails requesting work reports and her alleged statement that the steward would get in trouble for protected activity.
By appraisals dated January 28 and 27, 1997, respectively, the supervisor re-rated the grievants in the "fully successful" range. However, their numerical scores were lower than the initial August 1996 appraisals. [n2]
On February 12, 1997, the ALC's Labor Relations Office forwarded copies of the three ULPs, regarding [ v55 p1202 ] e-mails and the steward's protected activity, to management in charge of supervisor's section for review and response. As a result, the supervisor became aware of these ULP charges, at the earliest, on February 12, or sometime shortly thereafter.
In March 1997, on two or more occasions, the supervisor released both grievants to discuss the ULP charges at the Union hall with an FLRA investigator. The supervisor was aware of the reason for these visits to the Union.
On April 18, 1997, the supervisor rated both grievants in the "fully successful" range for the appraisal year from July 1, 1996 through March 31, 1997. Both employees actually received these appraisals on May 9, 1997. Their numerical scores were higher than the January re-appraisals.
B. Judge's Decision
The Judge analyzed this case under the framework for cases alleging discrimination for protected activity set forth in the Authority's decision in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny). The Judge concluded that a prima facie case of discrimination had not been established on the basis of the entire record. In so doing, the Judge rejected the General Counsel's argument that the supervisor's appraisals of the grievants, compared to those of the other two technicians, warranted an inference of disparate treatment. The Judge noted that the total "numerical" scores for all four technicians "changed by at least three points between 1995 and 1997." Judge's Decision at 11. The Judge emphasized that since 1995, three of the technicians had received lower numerical scores (the grievants and another technician) while only one technician had received a higher score. Moreover, regarding the summary ratings, "a more radical change occurred" for three of the four technicians. Id. The Judge pointed out that although the grievants were the only two employees whose summary ratings declined since 1995, this decline from excellent to fully successful occurred in August 1996, with the supervisor's first round of appraisals and before any of the "relevant protected activity" at issue in this case. Id. The Judge concluded that the August 1996 appraisals of the grievants represented the point at which the supervisor "differentiated their performances substantially from the performances of [the other two technicians]." Id.
Moreover, the Judge found that the supervisor's January 1996 memo on one of the grievant's performance for the last six months in 1995 "constitute[d] persuasive evidence that [the supervisor's] less favorable view of [that grievant's] job performance preceded [her] protected activity." Id. at 12. However, the Judge found that the same conclusion was "not as clear [in the other grievant's case] although some signs of [the supervisor's] dissatisfaction" were evident by the performance discussion memo. Id. Nevertheless, the Judge concluded that the "record lacks any of the indicia that would justify a finding that the General Counsel has carried the burden of establishing this element [i.e., discriminatory motivation] of a prima facie showing regarding either employee." Id.
The Judge also rejected the General Counsel's argument that the timing of the April 1997 appraisals soon after the grievants' participation in the investigation of the ULPs warranted the inference of a discriminatory motive on supervisor's part. The Judge stated that, "[w]ithout more, an employee's protected activity, known to management, followed by his or her being placed in a less favorable position . . . does not warrant an inference of a causal relationship [since] . . . there must be some credible evidence to augment the mere contemporaneity of the protected activity and the employee's treatment." Id. at 10. In this regard, the Judge found that the supervisor "did not choose the time for making these appraisals, nor is there any basis to conclude that any other ALC officials tailored the date of these appraisals to respond to [the grievants'] protected activities." Id. at 12. The Judge also noted that the General Counsel's argument was rebutted by the ALC's "cogent point" that after the grievants' protected activities in March 1997, the supervisor gave both employees higher ratings in April 1997 than she did in January 1997. Id.
In closing, the Judge "note[d] that [the supervisor's] testimony in support of her ratings was plausible, internally consistent, and sufficient to explain why, at least in her own mind, [the grievants'] recent performance was neither equal to that of the other two procurement technicians nor compatible with [the grievants'] pre-1966 ratings." [n3] Id. The Judge further qualified his consideration of the supervisor's testimony by stating that his analysis of her testimony was "solely for the purpose" of making a prima facie determination. Id. In this regard, the Judge noted that he "need not decide whether [this testimony] would be sufficiently persuasive to rebut a prima facie showing . . . had such a [ v55 p1203 ] showing been made." Id. Finally, the Judge concluded that the supervisor's testimony is "sufficiently persuasive so that, considering it as part of the record as a whole, . . . [the supervisor's testimony] is not pretextual." Id.
Based on the foregoing, the Judge recommended that the complaint be dismissed.
III. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel excepts to the Judge's credibility determinations in favor of the supervisor. The General Counsel also excepts to the Judge's findings that the April 1997 performance appraisals for the grievants "were not motivated by unlawful consideration of their previously-filed grievances and their participation in the investigation of three unfair labor practice charges, and that the G[eneral] C[ounsel] did not establish a prima facie case of discrimination under the Letterkenny analytical framework." Exceptions at 1.
The General Counsel argues that the Judge erred in crediting, "[w]ithout explanation, . . . [the supervisor's] self-serving testimony in determining that her ratings of [the grievants'] 1996-1997 performance were not motivated by their protected activity." Id. at 13. Citing three credibility determinations in favor of the supervisor's testimony, the General Counsel argues that the lack of any stated basis for these determinations "creates the presumption that the Judge did not have a valid basis for crediting [the supervisor] instead of [the grievants]." Id. at 14. The General Counsel claims that the Judge's failure to state the basis of his credibility determinations is inconsistent with the Authority's requirement that judges do so, as stated in U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Coast and Geodetic Survey, Aeronautical Charting Division, Washington, D.C., 54 FLRA 987, 1007 n.12 (1998) (Department of Commerce, NOAA) (Member Wasserman concurring in pertinent part).
The General Counsel argues that the "record as a whole" established a prima facie case of discriminatory motive on the part of the supervisor. Exceptions at 9. The General Counsel states that the grievants were engaged in protected activity when they filed grievances and participated in the investigation of the ULP charges and that the Respondent was aware of this protected activity. The General Counsel contends that the Judge failed to draw a warranted inference of discriminatory motive based on the timing of the grievants' ratings that "plummeted concurrent with their grievance activity and, in the case of the 1996-1997 ratings, soon after they participated in the investigations of the ULP charges." Id. at 12.
The General Counsel further argues that the Respondent failed to rebut the prima facie showing of disparate treatment and that the reasons for the grievants' lowered appraisals were pretextual. In this respect, the General Counsel claims that the supervisor's testimony was replete with "generalities and inconsistencies" and that the Judge "failed to acknowledge the fact that [the supervisor] could not cite any substantive evidence that reasonably established that she had a legitimate basis for rating [the grievants] lower than she did in the 1994-1995 appraisal year -- or lower than [the other two technicians] in the 1996-1997 rating year." Id. at 10.
B. Respondent's Opposition
The Respondent argues that the General Counsel's contention that the Judge erred by crediting the supervisor's "self-serving" testimony is "misplaced." Opposition at 5. The Respondent notes that it is well established that the Authority will not overrule a Judge's credibility determinations unless a clear preponderance of the evidence shows that the determinations were incorrect. The Respondent contends that in this case, there is "insufficient evidence of record" to overrule the Judge's credibility determinations. Id. The Respondent maintains that the "only such evidence are the `self-serving' statements of the employees involved, and even these do not entirely contradict the testimony of [the supervisor]." Id. Furthermore, the Respondent argues that "[e]ven if the General Counsel had established a prima facie case of retaliation, the Respondent rebutted this showing . . . [by] [the supervisor's] testimony [that] was detailed, specific and unimpeached." Id.
The Respondent maintains that the Judge "correctly concluded that a prima facie case of retaliation had not been established." Id. at 4. The Respondent contends that the General Counsel is "again attempting to create a prima facie case of retaliation where none exists." Id. at 2. In response to the General Counsel's focus on the timing of the April 1997 appraisals, the Respondent points out that "[the supervisor] actually increased these employees' appraisals [in April 1997] after they engaged in protected activity." Id. at 3. The Respondent argues that although the grievants' April 1997 appraisals were lower than their appraisals from previous supervisors, "[t]he evidence, however, convincingly shows that [the supervisor] was critical of [the grievants'] performance . . . before either engaged in any protected activity at all." Id. The Respondent also emphasizes that the grievants received lower appraisals than the other two technicians in August 1996, prior to any of the relevant protected activity. Moreover, since [ v55 p1204 ] August 1996, the grievants' "relative standing" has not changed. Id. at 4 n.2.
The Respondent argues that the General Counsel has failed to establish that the employees' protected activity was a motivating factor for the April 1997 appraisals or that these appraisals constitute discriminatory action taken "against" the employees under the Letterkenny framework. Id. at 4. The Respondent contends that even though one grievant engaged in protected activity prior to the August 1996 appraisal, that grievant has never alleged that the August 1996 appraisal was the "product of unlawful retaliation." Id. at 4 n.3. Furthermore, the Respondent emphasizes that the General Counsel cannot claim that the other grievant's August 1996 appraisal was "tainted" by the supervisor's consideration of protected activity since that grievant had not engaged in any protected activity prior to the August 1996 appraisal. Id.
IV. Analysis and Conclusions
A. Authority's Review of the Judge's Credibility Determinations
The Authority has stated that it will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. 24th Combat Support Group, Howard Air Force Base, Republic of Panama, 55 FLRA 273, 279 (1999). The Authority has noted that credibility determinations may be based on a number of considerations. Such considerations may include, but are not limited to: 1) the witness's opportunity and capacity to observe the event in question; 2) the witness's character as it relates to honesty; 3) prior inconsistent statements by the witness; 4) the witness's bias or lack thereof; 5) the consistency of the witness's testimony with other record evidence; 6) the inherent improbability of the witness's testimony; and 7) the witness's demeanor. See Department of Commerce, NOAA, 54 FLRA at 1006 n.11 (citing Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987)). With respect to witness demeanor, the Authority has recognized that only the judge has the benefit of observing the witnesses while they testify, and accordingly, the Authority attaches great weight to a judge's determinations based on demeanor.
On the other hand, where considerations other than demeanor are implicated in a Judge's credibility determination, the reasons for deferring to the Judge are less compelling. Therefore, where a party raises exceptions to credibility determinations based on considerations other than witness demeanor, the Authority will review those determinations based on the record as a whole. Id. at 1007. In this regard, the Authority noted that,
It is incumbent on the judges to state the basis of their credibility determinations, e.g., whether they are based on witness demeanor or some other basis. For the reasons set forth above, it is also incumbent on the judges to explain, . . . why they credit or discredit the testimony of a particular witness. . . . Moreover, if parties choose to litigate non-demeanor credibility determinations, such exceptions to a judge's credibility determination must include specific citations to the record in support thereof.
Id. at n.12.
We disagree with the General Counsel's claim that the Judge credited the testimony of the supervisor, without explanation, in the following two instances: (1) regarding one of the grievant's absences and whether the supervisor communicated with her about work/performance problems; and (2) regarding the overall performance of the four technicians. In both of these instances, the Judge states or explains the basis for his credibility determinations in favor of the supervisor. In the first instance, the Judge credited the supervisor instead of the grievant in light of the inconsistency in the grievant's testimony. See Judge's Decision at 5, n.6. In this regard, the General Counsel contends that the grievant's testimony is supported by her co-worker's testimony. However, our review of the record reveals that the co-worker's testimony contradicts, rather than supports, the grievant's testimony that the supervisor never spoke with her about work. See Tr. at 85-87 (the co-worker testified that "[the supervisor] was all the time talking to [the grievant] about her doing something[,]" and specifically recalled two conversations between the supervisor and the grievant regarding work issues). Our examination of the record otherwise reveals no basis for reversing the Judge's credibility finding.
In the second instance, the Judge stated that "[the supervisor's] testimony in support of her ratings was plausible, internally consistent, and sufficient to explain why, at least in her own mind, [the grievants'] recent performance was neither equal to that of the other two procurement technicians nor compatible with [the grievants' pre- ratings." Judge's Decision at 12. The Judge further explained that the supervisor's testimony was "sufficiently persuasive so that, considering it as part of the record as a whole, . . . [the supervisor's testimony] is not pretextual." Id. In this connection, the General Counsel characterizes the supervisor's testimony as inconsistent, contradictory, questionable and [ v55 p1205 ] nonspecific. In particular, the General Counsel focuses on the supervisor's inability to testify with specificity regarding certain details of the grievants' and other employees' work. Having reviewed the supervisor's testimony within the context of the record as a whole, we find that the General Counsel's contentions do not establish a clear preponderance of evidence that is contrary to the Judge's credibility determination.
In addition, the General Counsel takes issue with the Judge crediting the supervisor's testimony that she excluded a three-month period from the grievants' April 1997 appraisals, without providing any reasons for challenging the determination. Although the Judge did not state a reason for crediting the supervisor in this regard, the General Counsel has not provided any basis for overruling the Judge's determination. Moreover, our examination of the record reveals that the supervisor's testimony on this point was uncontradicted. Accordingly, we leave the Judge's credibility determination undisturbed.
Based on our review of the record as a whole, we find no basis for reversing the Judge's credibility resolutions in the instances addressed above, and accordingly, we adopt these resolutions.
B. Application of the Letterkenny Framework
It is well established that the Authority applies the analytical framework set forth in Letterkenny for resolving complaints of alleged discrimination in violation of section 7116(a)(2) of the Statute. See, e.g., Department of the Air Force, Warner Robins Air Logistics Center, Warner Robins Air Force Base, Georgia, 52 FLRA 602, 605 (1996). The same framework applies for resolving complaints of discrimination under section 7116(a)(4) of the Statute. See Federal Emergency Management Agency, 52 FLRA 486, 490 (1996) (FEMA); Department of Veterans Affairs Medical Center, Brockton and West Roxbury, Massachusetts, 43 FLRA 780, 781 (1991) (VA, Brockton). Under Letterkenny, the General Counsel establishes a prima facie showing of discrimination by establishing that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee. If the General Counsel fails to make the required prima facie showing, the case ends without further inquiry. Once the General Counsel makes the required prima facie showing, an agency may seek to establish the affirmative defense that: (1) there was a legitimate justification for the action; and (2) the same action would have been taken even in the absence of protected activity. The General Counsel may seek to establish that the agency's reasons for taking the action were pretextual. See Department of Commerce, NOAA, 54 FLRA at 995.
1. The Judge Did Not Err in Considering the Record as a Whole to Determine Whether a Prima Facie Case of Discrimination was Established
At the outset, we note that the Judge, in determining whether a prima facie case of discrimination was established under the Letterkenny framework, looked beyond the General Counsel's evidence and considered the record on a whole. [n4] Judge's Decision at 10. The Judge's consideration of the entire record in making this determination is consistent with Authority case law. See Internal Revenue Service, North Atlantic Region, Brookhaven Service Center, Holtsville, New York, 53 FLRA 732, 746-48 (1997) (Authority adopted the judge's findings and conclusions where the judge considered the testimony of respondent's witnesses in determining whether a prima facie case of discrimination had been established). See also Equal Employment Opportunity Commission, Phoenix District, Phoenix, Arizona, 50 FLRA 261, 263-64 (1995) (Authority considered the entire record in determining whether a prima facie showing of discriminatory motivation was established). Moreover, consistent with the Letterkenny framework outlined above, we find that the Judge appropriately determined that had a prima facie showing of discrimination been established, a more thorough evaluation and analysis of Respondent's affirmative defenses would have been necessary.
2. The Judge Properly Concluded that Inferences of Discriminatory Motivation are Not Warranted
We agree with the Judge's conclusions that inferences of discriminatory motive are not warranted based on the timing and alleged disparate treatment of the grievants. As for inferences to be drawn based on the timing of management actions, the Authority previously has held that "[a]lthough closeness in time between an agency's employment decision and protected activity engaged in by a union may support an inference of illegal anti-union motivation, it is not conclusive proof of a violation." [n5] U.S. Department of Labor, Washington, D.C., 37 FLRA 25, 37 (1990). See also U.S. Department of Veterans Affairs, Medical Center Northampton, Mas- [ v55 p1206 ] sachusetts, 51 FLRA 1520, 1528 (1996); U.S. Department of Agriculture, U.S. Forest Service, Frenchburg Job Corps, Mariba, Kentucky, 49 FLRA 1020, 1033 (1994); General Services Administration, Region IX, San Francisco, California, 40 FLRA 973, 982 (1991); United States Customs Service, Region IV, Miami District, Miami, Florida, 36 FLRA 489, 496 (1990).
Here, we agree with the Judge that the timing of the April 1997 appraisals following the March ULP investigations is not suspicious and does not warrant an inference of discriminatory motive. The supervisor's unchallenged testimony regarding the timing of the April 1997 appraisals established that she rated the four technicians at that time because of upper-level management's change in the appraisal year to July 1, 1996 through March 31, 1997, as reflected on the appraisal forms for 1996-1997. Thus, the Judge reasonably concluded that the supervisor "did not choose the time for making these appraisals, nor is there any basis to conclude that any other ALC officials tailored the date of these appraisals to respond to [the grievants'] protected activities." Judge's Decision at 12. Furthermore, the Judge found significant the fact that the grievants' total numerical scores on their April 1997 appraisals were actually higher than the scores on their January 1997 re-appraisals. [n6] In agreement with the Judge, we find this increase particularly telling since the supervisor gave the grievants higher scores on their April 1997 appraisals after the grievants had recently engaged in protected activity, namely, as witnesses in the ULP investigations during March 1997. Also, this increase refutes the General Counsel's contention that the grievants' "ratings [have] plummeted concurrent with their grievance activity[.]" Exceptions at 12.
Moreover, the General Counsel has not established that an inference of discriminatory motive based on disparate treatment is warranted. The record supports the Judge's determination that the total "numerical" scores for all four technicians "changed by at least three points between 1995 and 1997," and that besides the grievants, another technician also received lower numerical scores in August 1996. Judge's Decision at 11; General Counsel's Exhibits Nos. 9-12, 15-20. As the Judge also correctly noted, the grievants' decline in summary ratings from excellent to fully successful occurred in August 1996 with the supervisor's first round of annual appraisals and since then, the grievants have consistently received summary ratings of "fully successful," despite the fluctuations in numerical scores. The relative decline in summary ratings from "excellent" to "fully successful" in August 1996 for the grievants, compared to their past appraisals from different supervisors, was decidedly before the relevant protected activity at issue, i.e., their grievances regarding these August appraisals and their participation in the ULP investigations in March 1997. Moreover, we agree with the Judge's finding that the supervisor's January 1996 memo on one grievant's performance for the last six months in 1995 "constitute[s] persuasive evidence that [the supervisor's] less favorable view of [that grievant's] job performance preceded [her] protected activity." Id. at 12. In the case of the other grievant, we find compelling the fact that she did not engage in any protected activity prior to the decline in her summary rating and scores in August 1996. We conclude that these circumstances substantially undercut the General Counsel's claim that an inference or prima facie showing of discriminatory motive was established based on disparate treatment.
Accordingly, we adopt the Judge's conclusions that inferences of discriminatory motive based on timing and alleged disparate treatment were not warranted and that a prima facie case was not established.
Based on the foregoing, the complaint is dismissed.
File 1: Authority's Decision in 55 FLRA No. 194
File 2: ALJ's Decision
Footnote # 1 for 55 FLRA No. 194 - Authority's Decision
Footnote # 2 for 55 FLRA No. 194 - Authority's Decision
The Union subsequently filed ULP charges regarding the grievants' January 1997 re-appraisals, that were settled by reinstating the initial August 1996 appraisals. The General Counsel withdrew a claim that the filing of the ULP charges regarding the January re-appraisals was part of the discriminatory basis for the April 1997 appraisals.
Footnote # 3 for 55 FLRA No. 194 - Authority's Decision
Footnote # 4 for 55 FLRA No. 194 - Authority's Decision
Footnote # 5 for 55 FLRA No. 194 - Authority's Decision
While not necessary to his decision, the Judge stated that the General Counsel must present additional evidence besides the timing of the protected activity and management's actions to establish an inference of discriminatory motive. We do not adopt this determination. We note that in at least one prior decision, the Authority found that timing alone warranted an inference of discriminatory motive. VA, Brockton, 43 FLRA at 787 (the Authority adopted the judge's findings and conclusions where the judge concluded that a prima facie case had been established since the timing of management's letter of reprimand that was issued three weeks after the infraction and only after the employee apprised management about the filing of a ULP charge "warrant[ed] the inference that [the employee's] filing of that charge was at least a motivating factor in [management's] decision to impose formal discipline" (emphasis in original)). Cf. Waddell v. Small Tube Products, Inc., 799 F.2d 69, 73 (3rd Cir. 1986) (the court of appeals affirmed the district court's finding that a prima facie case of retaliatory motive under Title VII of the Civil Rights Act was made based on the timing of the employer's refusal to rehire the employee after learning that the state Human Relations Commission had dismissed the employee's religious discrimination charge).
Footnote # 6 for 55 FLRA No. 194 - Authority's Decision
The General Counsel does not address the grievants' increase in overall scores from January 1997 to April 1997. Rather, the General Counsel focuses on the fact that the scores on the April 1997 appraisals are lower than the grievants' original scores on the August 1996 appraisals. See General Counsel's Post-Hearing Brief at 7. However, for our purposes, in determining the supervisor's motivation when she evaluated the grievants in April 1997, we agree with the Judge's treatment of the January 1997 re- appraisals as the relevant "appraisal[s] of record" for the preceding year that were in place at that time. Judge's Decision at 7.