Elsa M. Martinez, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionFeb 4, 2009
0120083374 (E.E.O.C. Feb. 4, 2009)

0120083374

02-04-2009

Elsa M. Martinez, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.


Elsa M. Martinez,

Complainant,

v.

Michael W. Wynne,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 0120083374

Hearing No. 451200800042X

Agency No. 820J07023F08

DECISION

On July 21, 2008, complainant filed an appeal from the agency's June

16, 2008 final order concerning her 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely

and is accepted pursuant to

29 C.F.R. � 1614.405(a). For the following reasons, the Commission

affirms the agency's final order.

ISSUES PRESENTED

The issues presented on appeal are: (1) whether there was a substantial

showing of bias by the EEOC Administrative Judge (AJ) to deny complainant

an opportunity for a full and fair hearing when the AJ stopped the

hearing after complainant presented only three of her five witnesses;

(2) whether there was substantial evidence in the record to support

the AJ's bench decision, finding that complainant was not discriminated

against on the bases alleged.

BACKGROUND

At the time of events giving rise to this complaint, complainant

worked as a public affairs specialist for the 433rd Air Wing at the

agency's Lackland Air Force Base in San Antonio, Texas. Her duties

and responsibilities included conducting guided tours of the facilities

and aircraft as well as supporting activities that contributed to good

relations and understanding between military personnel and the public.

Complainant filed an EEO complaint on June 15, 2007, and subsequently

requested to amend her complaint. The agency accepted for investigation

complainant's allegations that she was subjected to harassment and

discrimination on the bases of national origin (Mexican-American), sex

(female), disability (recovering knee replacement and pending ankle

corrections), and reprisal for prior protected EEO activity when:

1. on March 21, 2007, complainant's supervisor denied her attendance for

the Employer Support of the Guard and Reserve (ESGR) annual meeting and

training held in Corpus Christi, Texas;

2. on July 5, 2007, complainant's supervisor deliberately misrepresented

complainant's efforts in trying to salvage a major tour event by

distorting the facts of what actually happened in planning the event;

3. on June 20, 2007, complainant's supervisor informed complainant that

the Public Affairs tours she conducted may be cut back due to mission

demands of the C-5 Schoolhouse;

4. on May 31, 2007, complainant's first-level and second-level supervisors

questioned complainant about speaking with C.J. about a June 8, 2007

flight, casting aspersions on complainant's account of the conversation;

5. on May 30, 2007, complainant's supervisor presented complainant with

an Air Force Form 971 entry concerning a photo taken on the 433rd parking

ramp, accusing complainant of deliberately not informing the supervisor

of an earlier arrival time of an aircraft;

6. on May 17, 2007, complainant's supervisor presented complainant with

an Air Force Form 971 entry, concerning her leave use;

7. on May 7, 2007, complainant's supervisor sent a captain to assist

complainant with a tour, but the captain did not offer her any help

with the tour, even though the captain knew of her temporary physical

disabilities;

8. complainant's supervisor failed to annotate in complainant's Air

Force Form 971 the ESGR training undertaken by complainant on a Saturday.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an AJ. Complainant timely requested a hearing.

A pre-hearing conference was held on March 17, 2008. After the

conference, complainant filed a motion to have the AJ recuse himself,

a motion that the AJ denied on March 26, 2008.

On April 22, 2008, the AJ held a hearing, in which complainant was

represented by a union representative. In addition to her own testimony,

complainant presented the testimony of C.M., an air reserve technician

working as a public affairs specialist in the same unit as complainant,

and B.H., a coworker and former supervisor of complainant. On multiple

occasions when complainant was testifying, the AJ asked complainant

to clarify her claims and explain how she was discriminated against on

the bases alleged. At the end of complainant's testimony, the AJ asked

complainant's representative what additional evidence would be presented

that could help persuade him that complainant had been discriminated

against. The representative replied that complainant's supervisor ought

to be able to respond to complainant's allegations in claims 5 and

6 that the supervisor's Form 971 entries were not justified. The AJ

asked how the supervisor's testimony could supplement or explain the

existing record, in which the supervisor already averred in her affidavit

her reasons for her actions. Complainant explained that she wanted the

supervisor to testify because their working relationship consisted of the

supervisor either ignoring complainant, giving complainant a Form 971

entry without discussing it, or crying. The AJ told complainant that

an EEOC hearing was not the proper forum to have a dialogue and build

a relationship with a supervisor. The AJ then went off the record to

discuss the possibility of settlement, but was not successful. Then the

AJ found that, even when giving credence to complainant's version of

events, the supervisor's testimony would have added nothing to the

statements made in her affidavits. The agency subsequently withdrew

its witnesses, and each party presented a closing statement.

At the conclusion of the hearing, the AJ issued a bench decision. The AJ

determined that complainant did not suffer adverse employment actions

under claims 1, 2, and 4. For claims 3, 5, 6, and 8, the AJ found that

the agency had articulated legitimate, non-discriminatory reasons for

its actions, and that complainant failed to show by a preponderance of

the evidence that the agency's explanations were pretextual. For claim

7, the AJ found that complainant was not discriminated against because

complainant had not asked the agency for assistance to conduct her tour,

and when the captain did arrive, he assisted with the tour. The AJ found

that the matters alleged by complainant were not sufficiently severe or

pervasive to constitute harassment.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that she was subjected to discrimination

as alleged.

CONTENTIONS ON APPEAL

Complainant contends1 that the AJ denied her the opportunity for a full,

fair, and impartial hearing because the AJ showed substantial bias

against complainant through his expressed words about complainant, and

his refusal to hear the testimony of the agency's witnesses, especially

her first-level supervisor.

ANALYSIS AND FINDINGS

A. Bias Claim

On appeal, complainant maintains that the AJ conducted the administrative

hearing in a biased and unfair manner by depriving her of an opportunity

to present testimony from witnesses who could establish that the

agency's articulated reasons were unworthy of credence. In particular,

complainant contends that the AJ was biased in preventing complainant from

cross-examining her first-level supervisor to show that the supervisor's

proffered reasons were pretextual. In addition, complainant highlights

several passages in the hearing transcript and bench decision where

the AJ commented that: (1) complainant had an imperious bearing and

superior attitude, which constituted major sources of conflict in the

workplace; (2) complainant focused too much on her personal situation,

such as her likes, dislikes, wants, desires, and personal ambition;

and (3) complainant had lost sight of her mission, which was to be a

"cheerleader" for the armed forces. Lastly, complainant argues in her

brief on appeal that the AJ showed bias in the pre-hearing conference

when he allegedly told complainant that she had "mouthed off" at her

supervisor, that a hearing "was not a way to make friends," and that

disputes with one's supervisor could be construed as "insubordinate

behavior" that "could possibly lead to removal."

An administrative hearing is an extension of the fact-finding

process, and an AJ is vested with the power to regulate the course

of the hearing. See 29 C.F.R. � 1614.109(e). To prevail on a claim

that the AJ conducted an administrative hearing in a biased and unfair

manner such that the complainant failed to receive a fair and impartial

hearing, the complainant must make a substantial showing of personal bias.

Davis v. United States Postal Service, EEOC Appeal No. 01A54268 (November

7, 2005) (citing Roberts v. Morton, 549 F.2d 158, cert. denied, Roberts

v. Andrus, 434 U.S. 834 (1977)).

After a review of the record, the Commission finds that there was not a

substantial showing of personal bias by the AJ to deprive complainant

a fair and impartial hearing. Other than complainant's reference to

the allegations made in her motion to have the AJ recuse himself, no

other evidence exists of the AJ's comments or conduct at the pre-hearing

conference. At the hearing, complainant, who had union representation,

was allowed to present the testimony of two of her coworkers, one of

whom was serving overseas at the time. During the hearing, the majority

of the AJ's questions were posed in an attempt by the AJ to understand

complainant's claims and determine whether the agency discriminated

against complainant as she alleged. The AJ gave complainant's

representative an opportunity to explain what other evidence could be

presented to supplement or explain the existing record. However, the

complainant's representative could not identify any additional testimony

that would add relevant information to the existing record. While the

AJ's comments regarding complainant's manner were unfortunate, there

was insufficient evidence of personal bias in the AJ's conduct at the

hearing to show that complainant was denied a fair and impartial hearing.

B. Claims of Discrimination

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).

1. Disparate Treatment Claims

To prevail in a disparate treatment claim, complainant must satisfy the

three-part evidentiary scheme fashioned by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially

establish 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 Construction 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 804

n. 14. The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,

complainant must prove, by a preponderance of the evidence, that the

agency's explanation is pretextual. 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).

a. Adverse Employment Action

The Commission affirms the AJ's finding that complainant failed to

establish prima facie cases of discrimination with respect to claims

2 and 4, because those claims did not show that she suffered adverse

employment actions.2

The Commission has repeatedly found that remarks or comments unaccompanied

by a concrete agency action are not a direct and personal deprivation

sufficient to render an individual aggrieved for the purposes of Title

VII. See Backo v. United States Postal Service, EEOC Request No. 05960227

(June 10, 1996); Henry v. United States Postal Service, EEOC Request

No. 05940695 (February 9, 1995). Therefore, the Commission finds that

complainant failed to show that she suffered adverse employment actions

when her first-level supervisor gave an allegedly erroneous account

of the reasons for complainant's cancelling of a tour to a commander,

as alleged in claim 2, and her supervisors questioned complainant's

account of a conversation with C.J, as alleged in claim 4.

b. Agency's Proffered Reasons and Pretext

When an agency articulates legitimate and nondiscriminatory reasons for

its conduct, the Commission may dispense with the prima facie inquiry when

conducting a McDonnell Douglas analysis. See U.S. Postal Serv. Board

of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of

Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).

To ultimately prevail, complainant must prove, by a preponderance of

the evidence, that the agency's explanation is pretextual. Reeves,

530 U.S. at 143; St. Mary's Honor Ctr., 509 U.S. at 519. A complainant

may demonstrate pretext by "showing . . . weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the [[a]gency's]

proffered legitimate reasons for its action that a reasonable fact

finder could rationally find . . . unworthy of credence." Dalesandro

v. U.S. Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006). However,

proof that "the employer's proffered reason is unpersuasive, or even

obviously contrived, does not necessarily establish that the plaintiff's

proffered reason . . . is correct." Reeves, 530 U.S. at 146-47 (quoting

St. Mary's, 509 U.S. at 524). It is not enough for the Commission

to disbelieve the agency; rather, the complainant must persuade the

Commission that the agency intentionally discriminated against him or her

based upon the complainant's membership in a protected group. See id. at

147; see also Lau v. U.S. Postal Serv., EEOC Appeal No. 0120065350

(June 13, 2008).

For claim 1, complainant's second-level supervisor averred that

complainant was not permitted to attend the ESGR meeting for her stated

purpose of asking ESGR why it was slow to underwrite the agency's "boss

days," and other management-level topics, because complainant was not a

management representative, and such management-related issues were beyond

complainant's purview. An affidavit of the second-level supervisor and

complainant's testimony at the hearing show that complainant wanted

to attend the ESGR meeting principally to ask ESGR about delays in

underwriting the agency's "boss days" and to inquire about individual

eligibility for military air travel. The second-level supervisor

averred that those inquiries were management-level questions, which

could not be asked by complainant at the ESGR meeting. The Commission

finds that complainant did not show that the agency's proffered reason

was pretextual.

For claim 3, the agency, through the affidavit of the second-level

supervisor, proffered a legitimate, nondiscriminatory reason for limiting

the opportunities complainant had to give tours in that the agency's

primary missions, maintenance of the fleet and the C-5 Schoolhouse,

required limiting the number of tours. Although complainant argued that

the reason was pretextual because tours for another facility were not

similarly shortened, complainant acknowledged at the hearing that the

distribution of days for tours between the facilities had been unequal

since 1993, and that the tours for the other facility were not conducted

under the auspices of public affairs. Because the distribution of

tour days between the facilities had not previously been the same, and

the complainant had previously been satisfied with the arrangement, the

Commission finds that complainant failed to demonstrate by a preponderance

of the evidence that the failure to decrease the other facility's tours

showed pretext or discriminatory animus.

For claim 5, the AJ found that complainant's supervisor wrote the Form

971 entry because the supervisor was frustrated when complainant did not

notify her that an important flight had arrived. Complainant failed to

show that by a preponderance of the evidence that the supervisor was

motivated by discriminatory animus in writing the entry, rather than

frustration for the stated reason.

For claim 6, the AJ found that the agency proffered a legitimate and

nondiscriminatory reason for a Form 971 entry concerning complainant's

leave usage in that complainant's current and former first-level

supervisors averred and testified to multiple instances when complainant

failed to follow proper procedures even though she had been instructed to

follow them. The Commission finds that complainant failed to show that

the agency's reason was pretextual or motivated by discriminatory animus.

For claim 7, the Commission finds that there is substantial evidence to

support the AJ's finding that complainant was not discriminated against

when the agency sent a captain to help complainant with her tour.

The first-level supervisor's affidavit and the captain's testimony at

the hearing show that complainant had not requested any assistance or

accommodation for conducting the tour, but that upon arrival, the captain

assisted by attending to one part of the tour group while complainant

attended to the other part of the tour group.

For claim 8, the AJ found that the agency had articulated a legitimate

reason for not annotating complainant's training records to reflect

the training that complainant had recently done on her own time, in

that complainant did not produce a training certificate or other proof

of completion. The Commission finds that complainant did not show by a

preponderance of the evidence that the proffered was reason was pretextual

or motivated by discriminatory animus.

3. Harassment Claim

To establish a claim of harassment based on race, sex, disability, age,

or reprisal, complainant must show that: (1) she is a member of the

statutorily protected class; (2) she was subjected to harassment in the

form of unwelcome verbal or physical conduct involving the protected

class; (3) the harassment complained of was based on the statutorily

protected class; and (4) the harassment affected a term or condition of

employment and/or had the purpose or effect of unreasonably interfering

with the work environment and/or creating an intimidating, hostile, or

offensive work environment. Humphrey v. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.

The harasser's conduct should be evaluated from the objective viewpoint of

a reasonable person in the victim's circumstances. Enforcement Guidance

on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March

8, 1994). Further, the incidents must have been "sufficiently severe

and pervasive to alter the conditions of complainant's employment and

create an abusive working environment."

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale

v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). In the case

of harassment by a supervisor, complainant must also show that there is

a basis for imputing liability to the employer. See Henson v. City of

Dundee, 682 F.2d 897 (11th Cir. 1982).

The Commission finds that the incidents alleged, considered either

individually or as a whole, were not sufficiently severe or pervasive to

constitute harassment on any of complainant's alleged bases. Many of

the actions alleged by complainant were common workplace occurrences,

and unless it is established that the actions were somehow abusive

or offensive, and were taken in order to harass complainant on the

basis of any of her protected classes, such everyday events are not

sufficiently severe or pervasive to constitute actionable harassment.

See Lynch v. United States Postal Service, EEOC Appeal No. 01981027

(July 16, 1999).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, the Commission affirms

the agency's final order.

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 4, 2009_________________

Date

1 In her brief on appeal, complainant also contends that the agency failed

to negotiate with complainant in good faith to settle the complaint prior

to the hearing. Complainant did not raise this matter at the hearing

before the AJ, and raises it for the first time on appeal. The Commission

will not accept a new matter raised on appeal. See Hubbard v. Department

of Homeland Security, EEOC Appeal No. 01A40449 (April 22, 2004); see also

Parrish v. Department of Defense, EEOC Appeal No. 01A33767 (March 31,

2004) (finding that complainant failed to state a claim when alleging that

an agency did not negotiate in good faith during an attempt to settle).

2 For an analysis of claim 1, see the section below.

??

??

??

??

2

0120083374

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013