03A10001
05-30-2001
Elgin W. Hunt, Petitioner, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Elgin W. Hunt v. Department of the Air Force
03A10001
05-30-01
.
Elgin W. Hunt,
Petitioner,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 03A10001
Hearing No. DA-0752-98-0523-I-2
DECISION
INTRODUCTION
On September 22, 2000, Elgin Hunt (petitioner) timely filed a petition
with the Commission for review of a final decision of the Merit Systems
Protection Board (MSPB or Board) concerning petitioner's allegation of
discrimination by the Department of the Air Force (agency) in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. The petition is governed by the provisions of
the Civil Service Reform Act of 1978 and EEOC regulations, 29 C.F.R. �
1614.303 et seq. The Board found that the agency had not engaged in
discrimination as alleged by petitioner. For the following reasons,
the Commission CONCURS with the Board's decision.
ISSUE PRESENTED
The issue presented herein is whether the Board's determination that
petitioner failed to prove that the agency discriminated against him on
the bases of race (African-American), color (black), national origin
(unknown), sex and reprisal constitutes a correct interpretation of
the applicable laws, rules, regulations, and policy directives, and is
supported by the record as a whole.
BACKGROUND
Petitioner, formerly employed by the agency as a Physical Science
Technician (GS-9), filed an appeal with an MSPB administrative judge
claiming, in relevant part, that he was the victim of discrimination on
the bases of race, color, national origin, sex and reprisal when he was
removed from his position with the agency, effective July 31, 1998.<1>
The removal action was based on two separate charges: (1) making threats
to a co-worker (Co-worker), and (2) making inappropriate and offensive
comments to Co-worker that violate the Air Force and SA-ALC policy on
EEO/Sexual Harassment.<2>
With respect to Charge 1, petitioner allegedly said, �One of these days,
I am going to come in here and just shoot everybody.� When Co-worker
replied, �...I hope you are just joking,� petitioner made a physical
gesture as if firing a machine gun. Co-worker then said, �Stop saying
stuff like that, only crazy people say that.� Petitioner allegedly
responded, �Well, some of the people around here deserve to die.�
With respect to Charge 2, petitioner allegedly believed an intern (Intern)
was automatically receiving the training she needed to be successful. The
agency contended that petitioner said, �Well, I can't stand that white
bitch.� Petitioner also allegedly told Co-worker that Co-worker should
hate the Intern as well because Co-worker is Hispanic and would never
be treated as well as the Intern. Co-worker told petitioner that he
would go to the EEO office if petitioner made another racist comment.
Petitioner allegedly told Co-worker that he should not threaten petitioner
because petitioner had a direct line to the President and would not
hesitate to call him.
The record indicates that petitioner had filed several EEO complaints,
some of which were still pending. The deciding official, as well as
the recommending officials, were aware of the protected activity when
petitioner was removed.
On December 29, 1999, the administrative judge issued a decision finding
no discrimination. Petitioner appealed that decision to the entire
Board. In a decision rendered on August 22, 2000, the Board affirmed the
administrative judge's findings. It is from that decision that petitioner
files his petition for review.
ANALYSIS AND FINDINGS
Petitioner can establish a prima facie case of discrimination based on
race, color, national origin and sex by showing that he: (1) is a member
of the protected groups; (2) met the employer's legitimate performance
expectations; (3) was discharged; and (4) was accorded treatment
different from that given to a person(s) otherwise similarly situated
who is(are) not a member(s) of his protected groups. See St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 506 (1993). We note, however, that
comparative evidence is only one way of establishing a prima facie case,
and that there are other methods of making such a showing. See 0'Conner
v. Consolidated Coin Caterers Corp., 519 U.S. 1040 (1996); Enforcement
Guidance on 0'Conner v. Consolidated Coin Caterers Corp., EEOC Notice
915.002 (September 18, 1996).
In order to establish a prima facie case of discrimination for a claim
of reprisal, petitioner must show the existence of four elements:
(1) that he engaged in protected activity; (2) that the alleged
discriminating official was aware of the protected activity; (3) that
he was disadvantaged by an action of the agency contemporaneous with
or subsequent to such participation; and (4) that there was a causal
connection between the protected activity and the adverse employment
action. See Hochstadt v. Worcester Found. for Experimental Biology, Inc.,
425 F. Supp. 418 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976);
see also Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985);
Burris v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th
Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
Although the initial inquiry in a discrimination case usually focuses
on whether the petitioner has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
a legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In
such cases, the inquiry shifts from whether the petitioner has established
a prima facie case to whether he has demonstrated by a preponderance
of the evidence that the agency's reasons for its actions were merely a
pretext for discrimination. Id.; see also United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983). In this
case, the Commission finds that the agency has articulated legitimate,
non-discriminatory reasons for its action. Specifically, the agency
stated that petitioner was terminated for making threats to a co-worker,
and making inappropriate and offensive comments to the same co-worker,
that violate the Air Force and SA-ALC policy on EEO/Sexual Harassment.
The agency has proffered a legitimate, nondiscriminatory reason for
the alleged discriminatory event. Petitioner now bears the burden of
establishing that the agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). We find that petitioner has failed
to meet this burden. In attempting to prove pretext, petitioner argued
that Co-worker's testimony had �holes,� his memorandum was incomplete,
and he failed to mention petitioner's apology in his testimony. These
alleged inconsistencies, however, do not prove that the discharge
was discriminatory. Moreover, the AJ found Co-worker to be credible
and his testimony to be consistent with his earlier memorandum of the
incidents. The Commission will not disturb the credibility determinations
of an AJ where, as here, the determinations are based on the demeanor
of the witnesses. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996). An AJ's credibility determinations
are entitled to deference due to the judge's first-hand
knowledge through personal observation of the demeanor and conduct of
the witnesses at the hearing. Esquer, supra. For these reasons, we find
that petitioner failed to show that the reason articulated by the agency
constitutes an effort to mask discriminatory animus.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the Board's finding
of no discrimination. The Commission finds that the Board's decision
constitutes a correct interpretation of the laws, rules, regulations,
and policies governing this matter and is supported by the evidence in
the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
___05-30-01_______________
Date
1 Prior to his removal, the agency suspended complainant for 10 days,
effective December 15, 1996, for engaging in disruptive and frightening
behavior. Effective January 5, 1998, the agency suspended complainant
for 14 days for failure to follow a proper order. Finally, complainant
was suspended for 30 days for inappropriate and offensive conduct in the
workplace which violated the Air Force and SA-ALC policy on EEO/Sexual
Harassment.
2 Petitioner argues that the administrative judge erred in separating
the charges; however, whether he so erred is beyond the scope of the
Commission's jurisdiction.