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