0120113762
08-30-2013
David P. Fazio, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
David P. Fazio,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120113762
Hearing No. 560201000149X
Agency No. 9V1M08392
DECISION
On July 11, 2011, Complainant filed an appeal from the Agency's June 7, 2011, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Quality Assurance Clerk at the Agency's facility at Tinker AFB, Oklahoma. He was also a union official who represented other employees in both union and EEO matters.
On November 6, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability1 and reprisal for prior protected EEO activity2 when:
1. On July 30, 2008, Complainant's supervisor confronted Complainant about his request for authorization to work on an EEO case where Complainant was acting as representative. Complainant alleges that his supervisor called Complainant a liar.
2. On July 30, 2008, the former Equal Opportunity Director (EEO Director) falsified official government documents and information to allege misrepresentation of official time, and coerced Complainant's immediate supervisor to issue a Notice of Proposed Removal to Complainant.
3. On August 1, 2008, a supervisor (PM) outside of Complainant's chain of command confronted Complainant during his assigned break, verbally humiliated Complainant and demanded that Complainant leave the break room immediately and not come back or visit any area within his supervisory control.
4. On August 1, 2008, PM made false allegations against Complainant and coerced Complainant's first line supervisor to use the false allegations to terminate Complainant from employment.
5. On August 6, 2008, Complainant's supervisor required Complainant to submit a form to request official time in order to meet with an EEO Specialist.
6. On August 5, 2008, another supervisor (JW) outside of Complainant's chain of command fabricated and submitted false information accusing Complainant of being in the supervisor's work area two months earlier on or around May 30, 2008.
7. On August 7, 2008 Complainant became aware that he had been charged 0.45 hours of absence without leave (AWOL), on August 1, 2008, and 1 hour AWOL on May 30, 2008.
8. On August 6, 2008, PM contacted Complainant's supervisor and made false allegations, and coerced Complainant's supervisor to take disciplinary action against the Complainant.
9. On August 6, 2008, Complainant's supervisor confronted Complainant in a hostile, intimidating and threatening manner about the allegations made by PM.
10. On August 11, 2008, PM contacted Complainant's supervisor, made false allegations about Complainant, and coerced Complainant's supervisor to take disciplinary action against Complainant.
11. On August 11, 2008, Complainant's supervisor confronted Complainant in a hostile, intimidating and threatening manner about false allegations made by PM.
12. On August 27, 2008, Complainant's supervisor was confrontational, threatening and intimidating when Complainant responded to the AF 971 Supplement Form, refused to take Complainant's evidence into consideration and refused to investigate the validity of the charges made against Complainant.
13. On October 20, 2008, Complainant's Deputy Branch Manager Chief (Chief), confronted Complainant in a hostile, threatening and intimidating manner when he issued the Decision to Terminate the Complainant from employment.3
14. On October 20, 2008, Complainant's supervisor behaved in a hostile, threatening and intimidating manner when he escorted Complainant to his vehicle upon his termination.
15. On October 20, 2008, Chief behaved in a hostile, threatening and intimidating manner when he escorted Complainant to his vehicle upon his termination.
At the conclusion of the investigation, the Agency provided Complainant 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, but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The instant appeal followed. Complainant submitted no brief in support of his appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Even assuming arguendo that Complainant established a prima facie case of reprisal discrimination, we find further that the responsible Agency management officials articulated legitimate, non-discriminatory reasons for the disputed actions.
In claim 1, Complainant's supervisor stated that, because of previous problems with Complainant leaving his work area without proper authorization,4 he did not believe that Complainant was acting as an EEO representative as he claimed when he submitted a request for official time. Consequently, Complainant's supervisor conceded that he told Complainant that he did not believe him. In claim 2, which involved the same event as claim 1, the supervsiors said he denied Complainant's request for official time after he checked with the EEO Director and was advised that Complainant was not the designated EEO representative for the employee as Complainant had claimed. As a result, Complainant's supervisor proposed Complainant's removal from the Agency. In response to the proposed removal, Complainant submitted evidence that he had provided his supervisor with the wrong EEO complaint number relating to his request for official time. Consequently, it was discovered that Complainant was, in fact, acting as an EEO representative as he had initially stated. The Agency contends that his supervisor acted based on his initial findings that Complainant had fraudulently submitted a request for official time and was not based on any animus toward Complainant's protected classes.
In claim 3, evidence shows that Complainant was in the break room in an area under the supervision of PM, who was not Complainant's supervisor. Complainant was talking to an employee supervised by PM. PM said he became concerned that his employee was not engaged in work. PM said he asked Complainant to leave the area, stating he had been there long enough. When Complainant stated he was on break, PM told him his break was over and he should return to his work area. PM stated that Complainant refused to leave despite his repeated requests and addressed him rudely. He later contacted Complainant's supervisor and requested that Complainant be told to stay out of PM's work area. The Agency later asserted that Complainant was not on an authorized break, leave or official union business during this incident.
Concerning claims 4, 6, 8, 9, 10 and 11 regarding Complainant's allegations that supervisor PM and supervisor JW made false allegations against him, and coerced Complainant's supervisor into taking disciplinary action against Complainant, the responsible officials indicated indicated that Complainant caused disruption when he came into the work areas supervised by PM and JW purportedly as a "union representative," but a not as an EEO representative for any employee under the supervision of PM or JW when he entered their work areas. In that regard, supervisors PM and JW, reported Complainant's conduct to Complainant's supervisor as required by Agency policy.
With respect to Complainant's claim that on August 6, 2008, his supervisor required him to submit a Union/Employee Official Time Permit so that he could attend his initial interview with an EEO Specialist (claim 5), his supervisor stated that Complainant did not advise him that the interview was for Complainant's own EEO complaint and not for another employee. It appears that while the form was required by Agency policy when an individual is acting as a representative for another in an EEO matter, it was not generally required when attending to a personal EEO matter. Complainant's supervisor testified that he would not have required Complainant to complete the form if he knew that Complainant was requesting official time with respect to his own EEO complaint.
In claim 7, the Agency management witnesses indicated that because Complainant was not on break or lunch, in an approved leave status or on official time concerning an EEO matter, Complainant was charged absent without leave (AWOL), for 0.45 hours on May 30, 2008 and August 1, 2008 for being in the work areas supervised by PM and JW.
In claims 12, 13, 14 and 15, Complainant alleges that Agency officials were hostile and intimidated him with respect to the Agency's decision to terminate him from employment. Complainant alleges that Agency officials behaved in a hostile and intimidating manner when he was escorted to his vehicle upon his termination from employment. In response to Complainant's claim the involved Agency officials stated they walked approximately 25 feet behind Complainant as he walked to his vehicle upon his termination only to ensure that he left the premises without disrupting the workplace.
Complainant failed to prove, by a preponderance of the evidence, that these proffered legitimate explanations were a pretext for discrimination and/or unlawful retaliation. There appears to be no connection whatsoever to mangement's actions and Complainant's disability. With regard to his retaliation claim, there is no doubt that many of the events at issue were related to Complainant's activities as a union representative. However, there is insufficient evidence to establish a nexus between his protected EEO activity and the events at issue. Complainant is entitled to reasonable official time to serve as an EEO representative, but in this case the supervisors reasonably believed that Complainant was not serving as an EEO representative as he claimed. The supervisors' belief was verified by the Agency's EEO Director. While a mistake on Complainant's part resulted in a misunderstanding in this matter, there is inadequate evidence to support a finding of retaliatory animus for EEO activity. Any potential retaliatory activity for Complainant's union activity needs to be remedied within the Agency's negotiated grievance process or with the filing of an unfair labor practice within the process governed by the Federal Labor Relations Authority, not in the EEO complaint process.
To the extent that Complainant alleges that the Agency's conduct constituted discriminatory harassment, the Commission notes that 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. U.S. Postal Serv., 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 Sys., Inc. at 3, 9 (March 8, 1994). After a review of the record, and considering Complainant's complaint in its entirety, we find that Complainant's claims as alleged do not constitute discriminatory harassment. Complainant failed to prove, as already discussed, that the Agency's actions were unlawfully motivated by discriminatory (because of his disability) or retaliatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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
August 30, 2013
__________________
Date
1 The record indicates that Complainant had a brain injury in 1996 that affected his mobility on his left side, including some partial paralysis. He also indicated he experienced anxiety and depression, as well as some blurred vision and migraine headaches.
2 The record shows that Complainant had previously filed three EEO complaints of his own, as well as acted as a representative for other employees. Many of the responsible management officials were aware of this past EEO activity.
3 Complainant appealed the actual termination decision to the Merit Systems Protection Board. The record shows that the Agency also dismissed claims concerning two suspensions issued in March 2008 as untimely raised. These suspensions were used to support the termination decision. On appeal, Complainant has not disputed the Agency's decision to dismiss the suspension claims. Therefore, we will not address them further.
4 The record indicates that Complainant was suspended twice in March 2008 as a result of these prior incidents. See note 3 of this decision.
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0120113762
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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