0120082295
02-11-2009
Edgar C. Bush, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Edgar C. Bush,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120082295
Agency No. 2006-20024-FAA-05
Hearing No. 461-2006-00074X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 24, 2008 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.
Complainant alleged that he was subjected to harassment and a hostile
work environment on the basis of race (African-American) when:
1. in July 2005, he was accused by management of failing to enforce
safety standards;
2. in September 2005, he was accused by management of not maintaining
contact with the office, resulting in his failure to receive notice of
an accident;
3. in September 2005, he was accused by management of failing to close
an investigation in a prompt manner; and
4. in October 2005, he was denied requested overtime while on travel
status.
Following the investigation into his complaint, complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision by summary judgment in favor of the agency. The agency adopted
the AJ's decision in its final order. The instant appeal followed.
The AJ found that the evidence in the record did not establish that
complainant was subjected to harassment based on race. Specifically,
the AJ found that the alleged harassment was insufficiently severe or
pervasive to create a hostile work environment. Regarding claim 1, the
AJ noted that according to the Manager (M1), management did not accuse
complainant of failing to enforce safety standards. In his affidavit,
M1 stated that after a review of complainant's work, he noted that
complainant "did not compile the data as I had suggested." M1 stated that
he informed complainant and his supervisor "I though we had missed a good
opportunity to address an office-wide problem and was disappointed-not
so much at the actual decision, but that the decision did not appear to
have been based (so far as I could tell), on defensible data."
Regarding claim 2, M1 denied complainant's allegation that he was accused
by management of not maintaining contact with the office, resulting in his
failure to receive notice of an accident. M1 stated that on September
20, 2005, the Operations Center contacted the Airworthiness Supervisor
(AS) stating that it had been unable to reach complainant on accident
standby by telephone. M1 stated that AS conducted an investigation, and
it was discovered that complainant did not take the accident standby kit
home with him "as is customary." M1 stated that AS also discovered that
"the person on duty at the com center didn't try to reach [Complainant]
at his home phone or on his personal cellular phone even though the office
provides a list of inspectors on accident standby and their home/mobile
phone numbers on a regular basis." M1 stated "[JS] verified that the Com
Center had the most recent listing, but did not use it. The specialist
on duty merely called a supervisor instead. Armed with this information,
[AS] advised [Complainant] not to worry about this episode."
Regarding claim 3, M1 acknowledged that in September 2005, complainant
was accused of failing to close an investigation in a prompt manner.
Specifically, M1 stated that complainant issued a letter of correction but
did not close out the case until well over two months later. M1 stated
that because complainant "forgot to close the case until long after he
issued the letter of correction, I remarked to his supervisor that it
was not acceptable that [Complainant] did not close such a routine case
in a timely manner." Furthermore, M1 stated "in fairness, some cases
require more time than others to complete, and sometimes more than the
time allowed by the deadline. Exceptions are made in those instances.
The case that [Complainant] worked was very straightforward, not an
exception."
Regarding claim 4, M1 stated that complainant "wanted overtime money
instead of the agreed-upon compensatory time for his trip. I told
[Complainant], as I had been briefed, that we didn't have any overtime
money in the budget." M1 stated that he contacted Human Resources and was
told "regardless of what [Complainant] had previously agreed to, we had to
pay [Complainant] overtime if he requested it because he was an 1825-13.
It was at that time I learned that funding could be made available to
pay for [Complainant's] special request." M1 stated that complainant
was eventually paid requested overtime while on travel status.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
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.1
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
February 11, 2009
__________________
Date
1 On appeal, complainant does not challenge a March 7, 2006 partial
dismissal issued by the agency regarding another claim (that he was
discriminated against on the basis of race when in May 2005, he was not
selected for a Principle Maintenance Inspector (PMI), GS-14 position).
Therefore, we have not addressed this issue in our decision.
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0120082295
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082295