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.
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0120083374
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013