OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second
Washington, DC 20540-1999
v. Case No. 96-AC-15 (CV, RP)
OFFICE OF THE ARCHITECT
OF THE CAPITOL,
Before the Board of Directors: Glen D.
Nager, Chair; James N. Adler; Jerry M. Hunter; Lawrence Z. Lorber;
Virginia A. Seitz, Members
DECISION OF THE BOARD
Appellant, Lawrence C. Hatcher, ("appellant")
appeals only from that portion of the Hearing Officer's decision
dismissing his claim that he was transferred in reprisal for filing
complaints of discrimination, in violation of section 207(a) of
the Congressional Accountability Act (the "CAA"), 2 U.S.C. § 1317(a);
he has not appealed from that portion of the Hearing Officer's decision
finding that he had not been sexually harassed. For the reasons
set forth below, the Board affirms the Hearing Officer's decision.
As found by the Hearing Officer, appellant is
a computer specialist currently assigned to the Office of the Director
of Engineering, Air Conditioning Engineering Division in the Office
of the Architect of the Capitol ("AOC"). See Decision at
2 (Finding of Fact No. 1). He has been employed by the AOC since
November of 1989 in a series of long-term temporary positions, beginning
as a computer operator, grade 5, in the Computer Operations Branch
of Information Resources Management ("IRM") in the AOC. See id.
at 2-3 (Findings of Fact Nos. 2, 3); see also Complainant's
Exhibit Nos. 6, 8.
In November of 1990, appellant started working
as a computer programmer in the Applications Branch of IRM in a
small office under the direct supervision of the Chief of the Applications
Branch, Betty Ann Rouse. See Decision at 2-3 (Findings of
Fact Nos. 2, 3). Although appellant received two grade promotions
and two in-grade step increases while under Mrs. Rouse's supervision,
rising from grade 5 to grade 9 step 3, see id. (Finding of
Fact No. 4), appellant's job performance came under criticism,
see id. (Finding of Fact No. 5). For example, in 1994, he was
required to make certain improvements in order to receive an in-grade
promotion and in 1995 he was placed on a formal "Performance Improvement
Plan." Id.; see also Tr. at 531-32; Complainant's
Exhibit No. 1.
Appellant's job performance problems were marked
by increasing conflicts with Mrs. Rouse. See id. at 3-4
(Finding of Fact No. 6). Appellant repeatedly interrupted Mrs.
Rouse to ask her questions and to argue with her evaluations of
his work, leading her to have a partition constructed around her
desk. See id.; see also Tr. at 350-52; Respondent's
Exhibit No. 33. In addition to face-to-face confrontations, appellant
also sent Mrs. Rouse "unseemly" e-mails. Decision at 4 (Finding
of Fact No. 6); see also Respondent's Exhibit Nos. 14-17.
Several times in 1994, "work related conflict spilled over into
confrontation on the public streets." Decision at 4 (Finding of
Fact No.6); see also Tr. at 367-72; 398-401. The Fair Employment
Practice Office ("FEP") of the AOC recommended that appellant complete
gender communication training. See Decision at 4 (Finding
of Fact No. 6); see also Respondent's Exhibit No. 18. Finally,
on November 3, 1995, Mrs. Rouse wrote a memorandum to the Director
of IRM, her supervisor, Richard A. Kashurba, asking him to transfer
appellant permanently from her unit. See Decision at 4 (Finding
of Fact No. 7). "This request was consistent with a 1994 memo to
Mr. Hatcher in which [Mrs. Rouse] suggested a transfer to alleviate
his problems." Id.; see also Respondent's Exhibit
Steps were then taken to effectuate appellant's
transfer in order "to give [him] a fresh start . . . . instead of
firing him." Decision at 7 (Finding of Fact No. 11.b.(1)); see
also Tr. at 426-32, 510-11, 514. The Air Conditioning Engineering
Division had long perceived the need for a computer specialist,
see Decision at 7 (Finding of Fact No. 11.b.(2)), and Mr.
Kashurba agreed to transfer appellant's position, along with appellant,
from the Applications Branch to the Office of the Director of Engineering,
see Decision at 8 (Finding of Fact No. 11.c.(1)); see
also Tr. at 258.
Between November 1995 and March 1996, steps
were taken to effectuate the change, see Decision at 7 (Finding
of Fact No. 11.b.(1)); on January 16, 1996, the Director of Engineering
and the Assistant Director of Engineering formally requested the
transfer, see Respondent's Exhibit No. 5, and on February
21, 1996, William Ensign, Acting Architect of the Capitol, approved
the new position, see Respondent's Exhibit No. 3. On March
4, 1996, appellant, aware of his imminent transfer, see Decision
at 4, 7 (Findings of Fact Nos. 9 & 11(a)), initiated written
proceedings with the FEP, alleging that Mrs. Rouse had made unwelcome
sexual advances to him in 1991 and 1992 and that, since his rejection
of them, he had been discriminated against in his work, see id.
at 4 (Finding of Fact No. 9); see also Complainant's
Exhibit No. 5 at 1-2. On March 6, 1996, appellant received a letter
dated March 4, 1996, notifying him formally of his transfer to the
Office of the Director of Engineering, Air Conditioning Engineering
Division of the AOC, effective March 10, 1996. See Respondent's
Exhibit No. 4. The letter stated that the "reassignment is not considered
an adverse action and provides the same career path as the position
you currently occupy in Information Resources Management." Id.
Appellant remains at the same grade and step as in his previous
position. See Decision at 8 (Finding of Fact No. 11.c.(1)).
Appellant filed a complaint with the Office
of Compliance alleging that "Mr. Kashurba's and Ms. Rouse's continuing
discrimination, creating a hostile environment, reprisal, and subsequent
reassigning me to the Air Conditioning Division is a direct result
of my refusal to reciprocate Ms. Rouse's sexual advances and for
initiating discriminatory complaints against them with the FEP Office
on March 4, 1996, October 1995, June 1995, and/or September 1994."
Complaint at 1. As provided under section 405 of the CAA, 2 U.S.C.
§ 1405, a full hearing was held before a Hearing Officer. Appellant,
represented by counsel, testified on his own behalf and introduced
16 exhibits. The AOC called four witnesses, including Mrs. Rouse,
Mr. Kashurba, and Ms. DiCanio, and offered 30 exhibits.
In a written decision incorporating separate
Findings of Fact and Conclusions of Law, the Hearing Officer rejected
both appellant's claim of sexual harassment and his claim of retaliatory
transfer. The Hearing Officer concluded that appellant had "failed
to prove by a preponderance of the evidence that the Office of the
Architect of the Capitol discriminated against Lawrence C. Hatcher
in employment matters." Decision at 9 (Conclusion of Law No. 2).
The Hearing Officer's conclusion that appellant
had failed to prove any sexual harassment was based on the documentary
evidence and her assessment of the testimony, particularly the credibility
of appellant and Mrs. Rouse. She found that appellant's testimony
regarding his allegations of sexual harassment was "not credible":
"It comes 4-5 years after the alleged events and smacks of recent
fabrication designed to challenge his transfer. H[is] assertion
of reluctance to come forward earlier is fatuous particularly in
light of his frequent use of the FEP Office for other complaints
about Mrs. Rouse. His testimony does not match his prior affidavits."
Id. at 5 (Finding of Fact No.10.a.(1)). In contrast, the
Hearing Officer specifically credited Mrs. Rouse's testimony, which
she found "had a ring of authenticity and accuracy." Id.
at 6 (Finding of Fact No. 10.a.(3)).
As to appellant's claim of retaliatory transfer,
the Hearing Officer reached the following Conclusion of Law:
Complainant did not establish that any employment
decisions concerning him were reprisal or retaliation for initiating
complaints of discrimination against Mrs. Rouse. He did not prove
that his transfer was an adverse action or that it was causally
connected to his initiation of a discrimination complaint thus
he failed to establish at least two of the legal requisites for
this claim. Marzec v. Marsh, 990 F.2d 393, 396 (8th
Id. at 9-10 (Conclusion of Law No. 2 ).
In support of this conclusion, the Hearing Officer found that there
was no improper conduct underlying any employment action respecting
appellant in the entire period in which Mrs. Rouse was his supervisor:
"Mr. Hatcher's work experiences and the employment decisions made
concerning him from 1990-1996 were not the result of unlawful conduct
by Respondent." Id. at 6 (Finding of Fact No. 10.b). Rather,
the Hearing Officer concluded: "The credible testimony and the documentary
exhibits establish that Mr. Hatcher's work environment and the employment
decisions were the result of such factors as his apparent inability
to do some of the work, his refusal to follow directions and what
appears to be poor interpersonal skill." Id. (Finding of
Fact No. 10.b.(1)) In addition, the Hearing Officer made specific
findings in support of her conclusion that the "transfer was not
motivated by discriminatory animus or in response to the allegations
of sexual harassment." Id. at 7-8 (Finding of Fact No. 11.b).
The Hearing Officer, crediting the testimony of the AOC's witnesses,
found that the "transfer was designed to give Mr. Hatcher a fresh
start. His supervisors and the Fair Employment Practice Office of
the Architect of the Capitol helped him instead of firing him."
Id. at 7 (Finding of Fact No. 11.b.(1)). Moreover, the Hearing
Officer stated that she was persuaded by testimony in the record
that there was a "long-perceived need for computer assistance in
the Office of the Director of Engineering." Id. (Finding
of Fact No. 11.b.(2)).
The Hearing Officer also made specific findings
to support her conclusion that the transfer was not an adverse action.
She found that appellant's actual position was transferred from
his old unit to the new, and her analysis of the position descriptions
of appellant's old and new jobs led her to conclude that the differences
between them were "de minimis." Id. at 8 (Finding of Fact
No.11.c.(1)). Moreover, the "'professional status'" appellant enjoyed
in his old job was not, in the Hearing Officer's view, "diminished
by the transfer." Id. (Finding of Fact No.11.c.(2)). The
Hearing Officer further found that data entry tasks were necessitated
by the start-up requirements of the job and did not detract from
the "professional stature and growth in being the first computer
specialist to serve the Engineering Division." Id.
Under section 406(c) of the CAA, "[t]he Board
shall set aside a decision of a hearing officer if the Board determines
that the decision was--
(1) arbitrary, capricious, an abuse of discretion,
or otherwise not consistent with law;
(2) not made consistent with required procedures; or
(3) unsupported by substantial evidence."
2 U.S.C. § 1406(c). "In making determinations
under subsection (c), the Board shall review the whole record, or
those parts of it cited by a party, and due account shall be taken
of the rule of prejudicial error." 2 U.S.C. § 1406(d). Applying
these standards, and after review of the record as a whole, the
Board concludes that the Hearing Officer's decision should be affirmed.
Appellant does not challenge the Hearing Officer's
Conclusion of Law that, in order to prove a claim of unlawful retaliation
under section 207, he had to show, among other things, that his
transfer "was causally connected to his initiation of a discrimination
complaint." Id. at 10 (Conclusion of Law No. 2). Rather,
appellant appears to challenge the factual finding on which that
legal conclusion is based, that the "transfer was not motivated
by discriminatory animus or in response to the allegations of sexual
harassment." Decision at 7 (Finding of Fact No. 11.b). In the Board's
judgment, however, the Hearing Officer's finding regarding causation
is supported by substantial evidence in the record.
"Substantial evidence is more than a mere
scintilla. It means 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, 71 S. Ct. 456, 459 (1951) (citation omitted). The record in
this case clearly would allow a reasonable mind to conclude that
appellant's transfer was not in retaliation for his filing of any
The record amply documents the Hearing Officer's
finding respecting Mr. Hatcher's job performance problems. See,
e.g., Tr. at 322-24 (supervisor found appellant unable completely
to master certain programming tasks and to work independently of
close supervision, as required at grade 9); see also Tr.
at 402-06; Tr. at 531 (supervisor considered withholding within-grade
step increase because of performance problems); Respondent's Exhibit
No. 20 (within-grade step increase conditioned on making improvements
in specified areas); Respondent's Exhibit No. 11 (appellant was
refused a requested promotion to grade 11 because of work performance
problems); Complainant's Exhibit No. 1 (appellant placed on a Performance
Improvement Plan, which required that he rectify certain enumerated
performance problems or face disciplinary action).
The record also fully supports the Hearing Officer's
finding that appellant's job performance problems were accompanied
by escalating conflicts with Mrs. Rouse. See, e.g. Tr. at
350-52 (appellant's repeated interruptions of Mrs. Rouse to ask
her questions and to argue with her evaluations of his work led
her to have a partition constructed around her desk); Tr. at 367-72;
379-82 (testimony of Mrs. Rouse describing various incidents in
which appellant accosted her in public, used offensive language,
made personal remarks, "hit at" her with a document, ignored her
requests that he cease bothering her); Respondent's Exhibit No.
27 (Mrs. Rouse's letter of May 3, 1994 to appellant advising him
to cease "unprofessional" "personal" conversations and to stop following
her and waiting for her outside the office); Respondent's Exhibit
No. 18 (FEP attorney letter of Sept. 6, 1994, advising Mr. Hatcher
that unless he satisfactorily completes gender communication training
and modifies his behavior, his supervisors believe that he "should
seek alternative employment"); Tr. at 256-57; see also Respondent's
Exhibit No. 7.
The above record evidence provides ample support
for the Hearing Officer's finding that appellant's supervisors transferred
appellant as an alternative to termination in order to give appellant
the opportunity to make a fresh start in a different division. See,
e.g., Tr. at 426-32 (testimony of Mrs. Rouse that she
recommended transfer, rather than suspension or termination, to
give appellant another chance); Tr. at 510-14 (testimony of Ms.
DiCanio describing discussions respecting appellant's transfer,
corroborating testimony of Mrs. Rouse that transfer was motivated
by desire to give appellant a fresh start, "the opportunity to possibly
succeed," because he had done reasonable work while on temporary
transfer, rather than taking alternative options of abolishing his
temporary position or firing him); see also Tr. at 259 (testimony
of Richard Kashurba that his sole reasons for arranging transfer
of position and appellant from IRM to the Engineering Division were
to fill the need for a computer specialist in the Engineering Division
and because Mr. Hatcher was not performing satisfactorily in his
In arguing to the contrary, appellant points
to a few phrases in Mrs. Rouse's memorandum of November 3, 1995,
respecting appellant's frequent filing of EEO complaints in response
to her criticism. But appellant has done no more than identify evidence
that, if construed in favor of appellant, points in the opposite
direction from the Hearing Officer's conclusions. That evidence
need not be construed in such a way, however. Other evidence in
the record directly supports the contrary construction, see,
e.g. Tr. at 426-27, and, as noted above, the overwhelming mass
of the record evidence points strongly against appellant. Accordingly,
the evidence to which appellant points is not legally sufficient
to allow rejection of the Hearing Officer's finding. See Arkansas
v. Oklahoma, 503 U.S. 91, 113, 112 S. Ct.1046, 1060 (1992) ("A
court reviewing an agency's adjudicative action should accept the
agency's factual findings if those findings are supported
by substantial evidence on the record as a whole. The court should
not supplant the agency's findings merely by identifying alternative
findings that could be supported by substantial evidence.") (citation
The Board need not and does not address alternative
grounds of the Hearing Officer's decision or appellee's other arguments
for affirmance. Rather, for the reasons set forth above, the Board
affirms the Hearing Officer's decision.
It is so ordered.
Issued, Washington, D.C., February 18, 1998.