Anthony Bradford, Complainant,v.Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionJul 13, 2010
0120101112 (E.E.O.C. Jul. 13, 2010)

0120101112

07-13-2010

Anthony Bradford, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.


Anthony Bradford,

Complainant,

v.

Ray H. LaHood,

Secretary,

Department of Transportation,

(Federal Aviation Administration),

Agency.

Appeal No. 0120101112

Hearing No. 460200900018X

Agency No. 200821963FAA05

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's

appeal from the Agency's December 16, 2009 final order concerning

his equal employment opportunity (EEO) complaint alleging employment

discrimination in violation of Title VII of the Civil Rights Act of 1964

(Title VII), as amended, 42 U.S.C. � 2000e et seq.

BACKGROUND

Complainant, an Airway Transportation Systems Specialist, FV-2I01-H at

the Houston Air Route Traffic Control Center, alleged that the Agency

subjected him to hostile workplace discrimination on the bases of race

(African-American), color (Black), and reprisal for prior protected EEO

activity under Title VII when: 1) in December 2006, his supervisor advised

him that he would be changing his shift and when Complainant complained,

his supervisor said, "management can do whatever they want"; 2) his

supervisor held him accountable in his work performance evaluation for

not performing work on equipment tasks that require a minimum of two or

three people; 3) he was denied SCI increases; 4) he was told by several

people that his supervisor bad mouths him when he is not around; 5) in

April 2008, his supervisor attempted to influence the outcome of the new

union representative election, the only two candidates were Complainant

and a friend of his supervisor's; 6) his supervisor ignored his concerns

regarding safety issues and/or equipment degradations that Complainant

believed could impact the agency's mission; 7) he was issued several

letters of reprimand; 8) a co-worker harassed him on two occasions and

Complainant's supervisor failed to lake appropriate action; and, 9)

his supervisor blatantly tried to instigate hostility between him and

another coworker.

At the conclusion of the investigation, Complainant was provided with a

copy of the report of investigation and notice of his right to request a

hearing before an EEOC Administrative Judge (AJ). Complainant requested

a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).

On November 30, 2009, the AJ issued a summary decision finding

no discrimination. In reaching this decision, the AJ determined

that even if Complainant could establish a prima facie case, the

Agency had articulated legitimate, nondiscriminatory reasons for its

actions. Concerning Complainant's shift change claim, the AJ found

that Complainant's shift was not changed. The evidence revealed that

there was a proposed crew change due to a confrontation between two other

individuals, but after Complainant contacted his supervisor and complained

to the District Manager about the proposed schedule change, Complainant

concedes that he remained on the same shift. Even if Complainant's work

shift was changed, however, the evidence showed that other individuals

outside Complainant's protected classes also had their shifts changed.

Moreover, the record indicates that the proposed shift change was related

to a situation involving a confrontation between two other individuals

and not related to Complainant's race or color. With respect to his

claim of retaliation discrimination, in his sworn testimony, Complainant

simply refers to "[his supervisor's] well known reputation of retaliation"

but provides no evidence to contradict his supervisor's contention that

he was not aware of Complainant's prior EEO activity.

With respect to Complainant's work performance evaluation, Complainant

does not contest his 2008 midterm performance evaluation, dated May 8,

2008, which states that he is responsible for completing corrective

maintenance in a timely manner and that Complainant had two air handlers

that had unresolved corrective maintenance issues. Complainant does not

deny that one air handler was only partially repaired and that another

air handler was out of service for 420 days. Complainant provides no

evidence to show that his supervisor "made no effort to put someone

on shift to help him" because of his race, color or in retaliation

for his prior EEO activity. Further, because the record shows that

other individuals outside Complainant's protected classes also did

not receive SCI increases, the evidence does not support Complainant's

claim that he was subjected to discrimination when he was denied SCI

increases. Other than Complainant's assertion that he was subjected to

discrimination when he was told by several people that his supervisor

bad mouths him when he is not around, Complainant provides no evidence

of discriminatory animus.

Regarding Complainant's claim that his supervisor attempted to influence

the outcome of the new union representative election, Complainant puts

forth no evidence to show that his supervisor's actions were related

to his race, color or in retaliation for his prior EEO activity. Even

assuming, as Complainant contends, that Complainant's supervisor's

inquiries were intended to affect the outcome of the union election,

the supervisor's conduct under these circumstances does not constitute a

violation of Title VII. Complainant provides no evidence to show that he

was subjected to an adverse employment action when his supervisor ignored

his concerns regarding safety issues and/or equipment degradations that

Complainant believes could impact the agency's mission. The AJ noted

that a supervisor's refusal to accept a subordinate's advice does not

constitute a claim of discrimination but even if it did, Complainant

puts forth no

evidence to show that his supervisor's conduct in this regard was based

on any protected basis.

Complainant's claim of discrimination relating to the issuance of

several letters of reprimand is also not supported by the evidence.

Complainant provides no evidence to show that he was, in fact, issued

any letter of reprimand. The record reveals, however, that Complainant

received a record of counseling dated February 13, 2008, for failing to

complete preventive maintenance logging that fell due on his regular days

off or while he was on annual leave. The record also shows that when

Complainant complained to the District Manager that African Americans

males were treated differently when they missed Performance Maintenance

(PM), she brought in a manager from another organization to conduct an

independent investigation. As evidenced in the

record, the report of this independent investigation revealed that

Complainant missed an extremely large amount of PMs. Concerning

Complainant's claim of being harassed by a co-worker, and Complainant's

supervisor inciting hostility between complainant and this co-worker,

the AJ determined that the activity of which Complainant complains is not

severe or pervasive and does not constitute a hostile work environment.

Further, the record is devoid of any evidence of racial animus and there

is no evidence of a causal connection between the conduct Complainant

complains of and Complainant's prior EEO activity.

In conclusion, the AJ found that the events of which Complainant

complains, either individually or collectively fail to rise to the level

of unlawful harassment protected by Title VII. Most importantly, there

is no evidence that any of the actions or decisions of agency management

were motivated by unlawful reasons. Complainant failed to establish that

any of management's reasons for its actions were pretextual or unworthy

of belief. Complainant failed to establish discrimination under either

the theory of disparate treatment or unlawful harassment.

On appeal, Complainant asserts, inter alia, that the AJ improperly

entered summary judgment in this matter. He further asserts that the

AJ did not adequately address his claims of harassment.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(a), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, religion or prior

EEO activity is unlawful, if it is sufficiently patterned or pervasive.

Wibstad v. United States Postal Service, EEOC Appeal No. 01972699

(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39

(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift

Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working

environment is hostile, factors to consider are the frequency of the

alleged discriminatory conduct, its severity, whether it is physically

threatening or humiliating, and if it unreasonably interferes with an

employee's work performance. See Harris v. Forklift Systems, Inc., 510

U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has

stated that: "Conduct that is not severe or pervasive enough to create an

objectively hostile work environment - an environment that a reasonable

person would find hostile or abusive - is beyond Title VII's purview."

Harris, 510 U.S. at 22 (1993).

To establish a claim of hostile environment harassment, complainant

must show that: (1) he belongs to a statutorily protected class; (2) he

was subjected to harassment in the form of unwelcome verbal or physical

conduct involving the protected class; (3) the harassment complained of

was based on his statutorily protected class; (4) the harassment affected

a term or condition of employment and/or had the purpose or effect of

unreasonably interfering with the work environment and/or creating an

intimidating, hostile, or offensive work environment; and (5) there is a

basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897

(11th Cir. 1982). The harasser's conduct should be evaluated from the

objective viewpoint of a reasonable person in the victim's circumstances.

Enforcement Guidance at 6.

An employer is subject to vicarious liability for harassment when it is

"created by a supervisor with immediate (or successively higher) authority

over the employee." Burlington Industries, Inc., v. Ellerth, 524

U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524

U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not

result in a tangible employment action being taken against the employee,

the employer may raise an affirmative defense to liability. The agency

can meet this defense, which is subject to proof by a preponderance

of the evidence, by demonstrating: (a) that it exercised reasonable

care to prevent and correct promptly any harassing behavior; and (b)

that appellant unreasonably failed to take advantage of any preventive

or corrective opportunities provided by the agency or to avoid harm

otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;

Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:

Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice

No. 915.002 (June 18, 1999). This defense is not available when the

harassment results in a tangible employment action (e.g., a discharge,

demotion, or undesirable reassignment) being taken against the employee.

Here, Complainant asserted that based on his statutorily protected

classes, management continuously subjected him to a hostile work

environment. However, we find that Complainant has not shown that he

was subjected to harassment in the form of unwelcome verbal or physical

conduct involving his protected classes, or the harassment complained of

was based on his statutorily protected classes. Further, Complainant

has not shown that the purported harassment had the purpose or effect

of unreasonably interfering with the work environment and/or creating an

intimidating, hostile, or offensive work environment. While Complainant

has cited various incidents where agency management took actions that

were either adverse or disruptive to him, we find that Complainant fails

to show that these incidents were as a result of unlawful discrimination.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the Agency's final order,

because the Administrative Judge's issuance of a decision without a

hearing was appropriate and a preponderance of the record evidence does

not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

The Commission may, in its discretion, reconsider the decision in this

case if the Complainant or the Agency submits a written request containing

arguments or evidence which tend to establish 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.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive

for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).

All requests and arguments must be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

77960, Washington, DC 20013. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party. Failure to file within the time

period will result in dismissal of your request for reconsideration

as untimely, unless extenuating circumstances prevented the timely

filing of the request. Any supporting documentation must be submitted

with your request for reconsideration. The Commission will consider

requests for reconsideration filed after the deadline only in very

limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)

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. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

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

July 13, 2010

__________________

Date

2

0120101112

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120101112