0120072551
05-01-2009
David L. Weinstock, Complainant, v. Ray LaHood, Secretary, Department of Transportation, Agency.
David L. Weinstock,
Complainant,
v.
Ray LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120072551
Hearing No. 470-2006-00119X
Agency No. 2006-20330-FAA-04
DECISION
On May 2, 2007, complainant filed an appeal from the agency's April
2, 2007 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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons,
the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as an Airway Transportation System Specialist, FV-2101-F, at the agency's
work facility in Indianapolis.
On March 12, 2006, complainant filed an EEO complaint wherein he claimed
that he was discriminated against on the bases of his age (58) when on
February 10, 2006, he was terminated from his employment.
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 timely
requested a hearing and the AJ held a hearing on February 27, 2007,
and issued a decision on March 29, 2007.
The AJ noted that complainant was verbally counseled by his Supervisor on
at least three occasions. On October 20, 2005, the Supervisor counseled
complainant for failure to follow the instructions of the journey level
technicians who were assisting with his on-the-job training. On November
16, 2005, the Supervisor counseled complainant for attempting to work on
live critical voltage. On December 23, 2005, the Supervisor counseled
complainant for failing to follow the directions of the journey level
technicians, including working on equipment without the concurrence
of the journey level technician. As for the October 20, 2005 letter,
the technician had reported to a Union official that complainant had
disassembled the breaker without being certified to do so. The technician
stated that he had to rework the breaker so that he could personally
certify its condition. With respect to the November 16, 2005 letter, one
of complainant's coworkers reported to the Supervisor that complainant
was about to work on a live circuit, but that he stopped him. As for
the December 24, 2005 letter, the technician reported to the Supervisor
that complainant was turning a switch without being certified to do the
work and after he instructed complainant not to touch the switch. The
AJ noted that the Supervisor believed each of the coworkers' versions
of what occurred in light of his experience with them and the fact that
they had performed significant responsibilities in their positions.
The AJ found that the agency articulated a legitimate, nondiscriminatory
reason for terminating complainant's employment. The agency noted
that complainant's Supervisor stated that complainant was issued
counseling letters and terminated because he repeatedly failed to follow
instructions from supervisors and coworkers. The AJ noted that even
complainant's witnesses provided support for the agency's explanation.
The AJ observed that complainant's Supervisor was a credible witness.
The AJ noted that although the Supervisor did not observe complainant's
work, the Supervisor testified credibly as to why he was justified in
believing the reports from complainant's coworkers. The AJ further noted
that complainant is a trained and experienced engineer and despite that,
during his tenure with the agency, he did not follow the procedures,
practices, and policies that the agency mandates. The record indicates
that the Indianapolis airport is an integral component of the nation's
aviation system and that a breakdown in the airport's energy system could
have catastrophic implications as to air traffic control. With regard
to complainant's attempt to show pretext, the AJ noted that complainant
claimed that he had sufficient knowledge and training to perform work
at the facility. Nonetheless, the AJ stated that complainant was not
certified by the agency to perform any of the tasks, and he resisted
the efforts to instruct him in the agency's mandated procedures,
practices and policies. The AJ noted that complainant challenged the
agency's explanation in light of the fact that it sent him to extensive
training in Oklahoma City just prior to his termination. The AJ noted
that the Supervisor testified that the training had been planned and
obligated prior to the second and third incidents for which complainant
was counseled. Additionally, the AJ recognized that complainant raised
the issue of one of his Supervisor's counseling letters being dated a
day on which complainant did not work. The AJ, however, stated that the
Supervisor merely memorialized the counseling in writing the day after
the verbal counseling was conducted.
The AJ noted that complainant presented evidence that other employees
experienced age discrimination at the Indianapolis facility. However,
the AJ found that the relevant testimony did not advance complainant's
position. Similarly, the AJ discounted complainant's contention
that his witnesses were intimidated by management and that this
affected their testimony. Further, although the AJ recognized that
complainant and a coworker testified that employees would sabotage
another employee's employment if they did not like that person, the AJ
found to whatever extent that opinion may be justified, it was based
upon complainant's personality, and not his age. The AJ noted that
complainant sought to amend his complaint to include a claim of national
origin discrimination. Although the AJ denied complainant's Motion,
evidence was submitted related to national origin and the AJ did address
this claim. The AJ recognized that complainant is an immigrant from
the former Soviet Union and that much of his training and experience
is derived from his life there. However, the AJ noted that despite
complainant's focus on his accent, the various witnesses had little
or no problems understanding complainant at the hearing. The AJ noted
that there is no evidence that complainant's Supervisor ever discussed
complainant's national origin. The AJ found that the agency did not
discriminate against complainant on the basis of his national origin.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
On appeal, complainant contends that the three counseling letters
that he received were based on fabricated allegations. Complainant
denies that he took a breaker apart while a coworker was in the
restroom. With regard to a second charge against him, complainant
contends that he never worked on live critical voltage or high voltage
without proper coordination. With regard to the charge that he needs
to work with journey level technicians to follow directions when it
comes to performing maintenance on NAS equipment, complainant stated
that he previously helped other journey level technicians on the main
control panel for the power system. Complainant claims that he then was
told to assist them by turning knobs on the panel and that once he was
given instructions which were different, he followed that direction.
Complainant maintains that the official who terminated his employment
believed it was not worth the expense of trying to train him to perform
tasks since even if he learned the tasks he might soon retire as he would
soon be 60 years old. Complainant argues that once his age became known,
the agency proceeded with fabrication of false charges against him in
order to make his termination seem more reasonable. Complainant argues
that none of the three counseling letters were delivered on time or signed
by him, these letters were downgraded from reprimands to counseling,
and that none of the alleged violations could be substantiated during
the hearing. Complainant maintains that testimony from two of his
witnesses established his working skills and ability to communicate with
former coworkers and customers. Complainant further claims that three of
his witnesses testified that they experienced age discrimination while
working at that facility.
In response, the agency asserts that complainant's appeal is simply a
challenge of the AJ's witness credibility findings, and findings of fact,
with no basis being asserted for that challenge beyond complainant's
own subjective assertion. The agency maintains that the AJ's credibility
determinations are fully explained and adequately supported by the facts
in the record.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "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 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
Upon review of the record, it is evident that complainant's termination
was based on legitimate, nondiscriminatory reasons. The AJ's decision
finding no age and national origin discrimination with regard to this
claim is supported by substantial evidence.
As for complainant's contention that the counseling letters were based
on fabricated allegations, the record reveals that the testimony of
the relevant coworkers directly addressed the alleged incidents and
credibly described the manner in which complainant either failed to follow
directions or was not adhering to agency practices. Complainant argues
that the agency chose to terminate him because it decided in light
of his age that it would not be worth it to train him. We find that
complainant has not presented any evidence that persuasively supports
this position. The testimony of certain witnesses who had worked at
the Indianapolis facility that they felt discriminated against on the
basis of their age is not sufficient given the credible testimony of
the Supervisor and the relevant coworkers who reported complainant's
questionable safety practices and recalcitrant attitude. It is evident
that a personality conflict existed between complainant and some of
his coworkers. However, that does not translate into animus on the
alleged bases. Complainant has failed to establish that the agency's
reasons for his termination were pretext. Upon review of the record,
the Commission finds that the AJ's decision finding no age or national
origin discrimination is supported by substantial evidence.
Accordingly, the agency's final action finding no discrimination is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
May 1, 2009
__________________
Date
2
0120072551
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120072551