0120142939
06-21-2016
Edmond F.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Edmond F.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120142939
Hearing No. 570-2011-00216X
Agency No. 201023307PHMSA02
DECISION
Complainant filed an appeal from the Agency's July 21, 2014 final order concerning his equal employment opportunity (EEO) complaint. He alleged employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
ISSUES PRESENTED
The issue presented is whether the Administrative Judge's decision, finding no discrimination following a hearing, is supported by the record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Engineer at the Agency's Engineering and Emergency Support Pipeline and Hazardous Materials Safety Administration (PHMSA) facility in Washington, DC.
On May 19, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (57) and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when:
1. On or about February 18, 2010, Complainant's duties were temporarily reassigned to another employee, with the reassignment being a precursor to the permanent reassignment of these duties soon thereafter;
2. On or about February 22, 2010, Complainant was convinced to go on detail to the HazMat Office under false pretenses so the agency could eliminate his job;
3. Complainant's supervisor demonstrated a pattern of discrediting his work;
4. On July 13, 2010, Complainant's supervisor assigned him to the Emergency Support & Security Group without an SF-50 or job description to reflect the change; and
5. On July 15, 2010, the Acting Director of Emergency Support & Security requested that Complainant develop an annual performance plan for which he had little, if any, knowledge.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ held a multi-day hearing on March 18, 2014 to March 21, 2014 and the hearing continued on April 28-29, 2014.
The AJ issued a decision on July 21, 2014. The AJ found that "the Agency did not unlawfully discriminate against [Complainant] on the bases of his age or protected activity."
The AJ found that Complainant's complaint focused on two managers whom he believed engaged in the discriminatory act. One was the Director of Engineering. The second was the Deputy Associate Administrator for Field Operations. The Director was Complainant's first level supervisor prior to January 2010 and his second level supervisor thereafter. Those two officials were the Agency's primary witnesses. The AJ stated that he found the testimony was consistent with their previous statements and with the other credible testimony and evidence at the Hearing. Of the six employees identified in the demographic profile, three were over age 50. Complainant was the only employee who had filed an EEO complaint.
Claims One and Two- Reassignment and Detail to HazMat
Complainant identified detail opportunities as a high priority and expressed interest in details inside and outside of his location. The Acting Director of HazMat solicited volunteers to take a detail to HazMat to help with clearing the backlog. Complainant volunteered for the detail, which was a full-time assignment. The AJ found that Complainant had not shown that he was misled into thinking that the detail was for a part-time position. Witnesses testified that other employees were also detailed. The AJ found that the Agency's failed to issue a SF-52 was an oversight and that the Agency did not discriminate against Complainant when it offered him a detail.
The record also showed that Complainant's former duties were assumed by another employee while he was on detail. During this period, the Agency was undergoing a reorganization. The success of replacement employee led to management's decision to permanently reassigned Complainant to the Emergency Support & Security Division (ES&SD).
Claim Three - Discrediting Complainant's Work
Complainant presented testimony and documents pertaining to his job performance in PHMSA. The Agency's response was to assert that Complainant had difficulties in completing work and with regard to his interpersonal relationships. No witness, other than Complainant, testified that the two management officials inappropriately criticized Complainant's work. Many of the issues involved Complainant's failure to provide information to the attorney with whom he worked. The record includes documentation of the difficulty of interactions with Complainant. Complainant conceded that he did not believe that the attorneys were biased against him because of his age or protected activity.
The Agency cited the "Trunkline Special Permit" project as an example of a matter that dragged on for an undue length of time because there were unresolved technical issues for which the Complainant was responsible. That, in turn caused problems between Complainant and his supervisor. In addition, Complainant's communications with other employees was viewed as a significant stumbling block. The AJ found that Complainant provided no evidence that the Agency's reasons for replacing him on projects or committees were untrue. The AJ found that in every instance, the event did not occur as alleged by Complainant, and or the Agency had legitimate and non-discriminatory reasons for its actions.
Claim Four - Complainant's Assignment to FS&SD
Complainant's supervisor was responsible for selecting the employees to staff the ES&SD. The supervisor made the decision to place Complainant in the ES&SD. The supervisor testified that it was a "good match for [Complainant] to continue that work, but that we continue to have [the other named employee] working in the LNG area. According to the supervisor, Complainant was having difficulties in his position performing the LNG work and the other employee was performing the LNG work without the problems experienced by Complainant.
In response to the delay in getting the SF-50 for Complainant, the AJ found that the SF-50 was delayed because of the reorganization. The AJ found that Complainant filed to show that the Agency's articulated reasons were pretexts for discrimination.
Claim Five - Complainant's Performance Plan
Complainant alleged that he was retaliated against when he was tasked with developing an annual performance plan. The AJ concluded that the management official who made the request was not aware of Complainant's protected activity. He reasoned that "without this knowledge, [the official] could not have retaliated against [Complainant]." The AJ found that Complainant failed to come forward with any evidence that the Agency treated him any differently than other employees.
Complainant filed an appeal prior to the expiration of the 40 day period following his receipt of the AJ's decision. Consequently, the appeal is from the AJ decision, which became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
On appeal, Complainant maintains that the AJ's decision disregarded evidence favorable to Complainant and made procedural decisions that adversely influenced the proceedings and hearing. Specifically, he alleged that he was denied legal assistance because the Agency opposed AFGE's petition to include Complainant in the bargaining unit. Complainant offered evidence that the union petitioned the Federal labor Relations Authority to change the Complainant's bargaining unit status. Complainant disputes that he was assigned duties or performed CIFUS work. Complainant offers "clarifications and additional information from the EEOC proceedings that refute the Respondent's argument and assertions."
In response, the Agency argues that Complainant was not denied legal representation, because a union representative was present during the hearing and Complainant did not include an allegation in this complaint that changing his bargaining unit status was done to discriminate or retaliate against him.
ANALYSIS AND FINDINGS
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, at � VI.B. (Aug. 5, 2015).
In this case, we find that the AJ's decision is fully supported by the record. We are not persuaded that the AJ's decisions limiting testimony deprived Complainant of a full opportunity to present his case. We find that Complainant failed to show that the Agency's articulated reasons were a pretext for discrimination or retaliation. For all of these reasons, we discern no reason to overturn the AJ's decision.
CONCLUSION
Accordingly, we AFFIRM the Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 21, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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