Oldham v. West

• Decision Date: 16 February 1995
• Docket Number: No. 94-2809,94-2809
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 77, 66 Empl. Prac. Dec. P 43,433 Paul W. OLDHAM, Plaintiff-Appellant, v. Togo D. WEST, Jr., Secretary of the Army, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 985

47 F.3d 985

67 Fair Empl.Prac.Cas. (BNA) 77, 66 Empl.

Prac. Dec. P 43,433

Paul W. OLDHAM, Plaintiff-Appellant, v. Togo D. WEST, Jr., Secretary of the Army, Defendant-Appellee.

No. 94-2809.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 9, 1995.

Decided Feb. 16, 1995.

Charles R. Oldham, St. Louis, MO, argued, for appellant.

Herbert L. Harry, Dept. of Army, Arlington, VA, argued, for appellee.

Before HANSEN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WILL, ^* Senior District Judge.

WILL, Senior District Judge.

SUMMARY OF THE CASE

The plaintiff-appellant, Paul W. Oldham, alleges that he was subjected to retaliatory adverse employment treatment because he testified early in 1987 on behalf of a fellow employee, a black female, at an EEOC hearing. He was an employee of the Army Aviation Troop Command (ATCOM) having been hired by the Aviation Systems Command (AVSCOM), now known as ATCOM, in March 1982. In 1983, he received a two grade promotion, and a temporary promotion Loistine Stewart, a black female employee, had filed an EEO complaint charging discrimination in the failure to promote her and asked plaintiff to testify on her behalf at a hearing scheduled for April, 1987. He agreed to do so and his name appeared on a list of her witnesses given to the management in March 1987.

in January 1986 which was made permanent that fall.

Shortly thereafter, plaintiff was called out into the hall by his supervisor, Don Horlacher, and they had a conversation the exact substance of which is in dispute. It is undisputed, however, that regardless of exactly what was said, Horlacher indicated his substantial displeasure with plaintiff's testifying as a witness at Ms. Stewart's hearing.

Until that time, plaintiff had not only received the several promotions previously referred to but apparently was very well regarded by his superiors. Plaintiff alleges that very shortly thereafter, however, a series of retaliatory adverse employment actions were initiated against him by Horlacher and other supervisory employees. Co-employees noted a dramatic change in the attitude of management personnel towards him.

On March 30 and 31, 1987, plaintiff was charged with a security violation which, after a grievance procedure, was dropped. Although a rating of "exceptional" was expected to be recommended by his rater, it was changed to "fully successful." Thereafter, he was in effect demoted by having his responsibilities reduced and on July 7 was detailed away from his previous position and placed on temporary duty.

Plaintiff was then accused of sexual harassment in a complaint by the Division Chief who originally stated that the harassment had been reported to him and he had personally observed it. He later acknowledged that he had not seen any harassment, and the secretary in question stated that another male employee had suggested the complaint although she never used the term "sexual harassment."

Horlacher, in March 1987, charged plaintiff with forging the signature of his former supervisor on a rating. When questioned, the supervisor whose name Oldham was charged with having forged stated that the signature was his and not a forgery. Oldham was also charged with being disruptive at a meeting, which he had been instructed to attend, when a colonel ordered him to leave. He and several witnesses recollect that he left quietly. A supervisor made seven pencilled disciplinary action entries in his personnel records. When Oldham filed a union grievance, they were all erased. He failed to receive any of several available temporary promotions but instead was in effect demoted by being given a series of temporary details. In January 1988, the Army permanently reassigned him from the Readiness Directorate to the Maintenance Directorate.

On September 18, 1987, April 19, 1988, and March 7, 1989, Oldham filed EEO formal complaints alleging the various reprisals referred to above. The U.S. Army Civil Appellate Review Agency (USACARA) assigned investigators to hold fact-finding conferences on the three grievances. The investigators found "no reprisals."

Oldham then requested that an EEOC Administrative Law Judge hear the three EEO complaints he had filed which were consolidated for hearing. After a two-day hearing at which 13 individuals testified, the ALJ made credibility determinations and found that Oldham had established a prima facie case as to some of the alleged retaliations but not others, that the agency had articulated legitimate business reasons for its actions, but that Oldham had established by a preponderance of the evidence that the articulated reasons were more likely than not pretextual with respect to those actions as to which he had established a prima facie case. The ALJ recommended that Oldham be reassigned to his prior position, that the agency cease and desist from further retaliatory acts against him and that he be paid his reasonable attorney's fees.

The Army accepted the ALJ's findings which were in its favor, rejected those which were not and issued a final "no reprisal" decision. Oldham appealed the Army's rejection of the ALJ's recommendations to the EEOC which affirmed the Army's action. Thereafter, Oldham filed this civil action.

Subsequently, Oldham filed additional reprisal complaints on January 22, 1990, March 6, 1990, and May 7, 1990. The Army also investigated them and made findings of "no reprisal." They were added to this action by an amended complaint.

The case was assigned to a magistrate judge pursuant to stipulation. The defendant, the Secretary of the Army, filed a motion for summary judgment. In a 33-page opinion, the judge reviewed the record of the two-day hearing before the ALJ and the documents filed in support of and in opposition to the motion for summary judgment and concluded "Plaintiff has simply failed to meet his burden of proving that any of defendant's personnel discriminated against him. Defendant is accordingly entitled to summary judgment on plaintiff's complaint."

Oldham has appealed the summary judgment dismissal of his complaint alleging that the judge erred in ruling that there was no genuine dispute about any material fact with respect to his claims of reprisals because he had failed to carry his burden of establishing retaliation. We agree that, under the circumstances, summary dismissal of the complaint was erroneous and reverse.

DISCUSSION

We note first that, on a motion for summary judgment in an EEO case, as in others, the ultimate burden of proof is on the movant, here the defendant, to establish that there are no material facts in dispute and that, as a matter of law, the movant is entitled to judgment. Fed.R.Civ.P. 56(c); Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In deciding a motion for summary judgment, we review the facts and possible inferences from those facts in the light most favorable to the non-moving party. Id.

"Summary judgment is appropriate only in 'those rare...