0120081150
07-22-2009
Gaby Markey, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Gaby Markey,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120081150
Agency No. 200518827FAA01
DECISION
Complainant filed an appeal with this Commission from the December 7,
2007 agency decision finding no discrimination.
Complainant alleges 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. Specifically, complainant alleges that the agency discriminated
against her on the bases of national origin (Hungarian) and reprisal when
on July 22, 2004, she was terminated from her position as an Aircraft
Certification Assistant at the New York Aircraft Certification Office
(NYACO) during her probationary period.
Procedural Background
Complainant's complaint has been twice before the Commission. In Gabey
Markey v. Department of Transportation, EEOC Appeal No. 0120055564
(September 8, 2006) (Markey-1), we vacated the agency's July 27, 2005
finding no discrimination and remanded the matter to the agency for a
supplemental investigation. In Markey-1, we found that the record was
insufficient to make a determination on the merits of the complaint,
noting that complainant was not given sufficient opportunity to
establish that the agency's reasons for her termination were pretext
for discrimination or reprisal. In so deciding, the Commission noted
the investigator's failure to interview witnesses named by complainant
who could provide statements concerning complainant's performance
and her ethics and the work environment against foreign-born and
Black employees; the investigator's failure to interview employees
employed by complainant as clique members (White, U.S. born females)
who received unfair advancement and inside advice regarding specific
positions and who were delegated to higher grade or promotable positions,
or the investigator's failure to obtain an affidavit from the comparative
(White, U.S.-born female) that complainant identified was not terminated
during her probationary period, despite the comparative's alleged
infractions. The investigator also did not obtain an affidavit from
complainant. Accordingly, the Commission vacated the agency's decision
finding no discrimination and remanded this matter to the agency to
conduct a supplemental investigation.
Following a supplemental investigation, the agency issued a decision,
dated February 12, 2007, dismissing the remanded matter on the grounds
that complainant failed to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). In its decision on remand, the agency determined that as
a result of a settlement agreement, complainant was not aggrieved because
her employment record was changed to show she was still employed and that
complainant subsequently resigned with back pay and benefits. Complainant
filed an appeal of the agency's dismissal with the Commission.
In Gaby Markey v. Department of Transportation, EEOC Appeal No. 0120071970
(August 21, 2007) (Markey-2), the Commission found that the agency's
February 12, 2007 dismissal was improper. We determined in Markey-2
that the claim was more properly analyzed as whether the complaint was
rendered moot by the settlement agreement which rescinded the termination
and which was before the Merits Systems Protection Board. We concluded
that the termination claim was not moot because the record established
that complainant had requested compensatory damages. The agency was
ordered to issue a new decision on the merits. It is from the new
decision that complainant appeals.
CONTENTIONS ON APPEAL
On appeal, complainant raises several arguments. She contends that the
agency's termination of her employment was pretextual and its reasons
unsubstantiated. She asserts that the agency's management and the
U.S. born clique discriminated again minority administrative personnel.
Complainant also asserts that only members of the clique were advanced in
their employment and the comparative employee was promoted prior to the
completion of her probationary period while Black and foreign-born members
of the administrative personnel remained at grade level, transferred out
or were terminated. She asserts further that the Manager of the Engine &
Propeller Directorate at NERO (NERO Manager) enjoyed a tight and close
relationship with Employee A, a clique member (a former grade level GS-5
Aircraft Certification Assistant who was promoted to a GS-7 and then to
the position of Management and Program Analyst) and he always welcomed
clique members to accompany him for lunch when he visited complainant's
facility but that no minority administrative team members were invited.
About the NERO Manager, complainant also asserted that he supported any
decision elevating the position of clique members without questioning
their education and eligibility for grades or the circumstances of their
promotions. Regarding the comparative, complainant also asserts that
the comparative was afforded training while she was denied requested
training.
ANALYSIS AND FINDINGS
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject
to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) complainant engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
complainant was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Upon review, the Commission finds that the agency did not discriminate
against complainant based on national origin or reprisal.
Regarding the alleged national origin discrimination, the record reveals
that there was conflict in the work environment between complainant
and the members of a clique which was caused by favoritism. The clique
in the Administrative team consisted of White women only, none of whom
were foreign born. We find that complainant's supervisor knew of the
existence of the clique and the hostility it engendered but he appears
not to have confronted and corrected the hostility head on for fear of
ruffling the feathers of his superiors or the relationship superiors
may have had with those in the clique. The record also reveals that
the clique was part of the administrative team, including Employee A,
and that the clique vacationed, had lunch together and informed each
other of job openings and what steps had to be taken to advance to
higher grade levels. We find further that some of the members of the
clique were friends before they came to work for the agency.
The Commission concludes, nonetheless, that although there was favoritism
operating in the office, we cannot find, based on the evidence, that it
was motivated by discriminatory animus. The Commission has consistently
held that employment decisions based on friendship or favoritism are
not in violation of Title VII, so long as they are not also premised
on some basis which is unlawful under Title VII, such as national
origin. See Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986).
While cronyism may seem unfair, the focus in finding discrimination is
on the employer's motive, not business judgment. See Loeb v. Textron,
Inc., 600 F.2d 1003 n.6 (1st Cir. 1979).
Further, although the Commission finds that the agency articulated reasons
for complainant's termination were disingenuous and not the real reasons
for her termination, we do not find that the reasons were designed to
conceal prohibited discrimination. It is not sufficient "to disbelieve
the employer; the fact finder must believe the plaintiff's explanation
of intentional discrimination." St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993). What the record suggests is that it was easier
for complainant's supervisor to terminate her employment during her
probationary period rather than to address the underlying hostility in
the office engendered by favoritism and/or for him to incur the possible
disapproval of his supervisor by continuing complainant's employment.
The record contains complainant's letter of termination which states
that complainant was being terminated because it was determined that
her continued employment did not promote the efficiency of the federal
service, noting that team playing was an integral role in order to ensure
telephone coverage and that complainant had repeatedly failed to follow
administrative practices and procedures by not obtaining management
approval for actions, by knowingly violating a payroll order and by
failing to comply with office security protocol.
Despite management's claims regarding complainant's performance,
we find that complainant was industrious, competent, responsible, and
professional. Her performance in other employment prior to working for
the agency and her current employment evidence that she was a quality
employee. Further, the record contains a letter from the agency, dated
September 18, 2003, in which the Manager of the Engine and Propeller
Directorate for the Aircraft Certification Service recommended that
complainant be appointed to her position above the minimum rate for
the position because of her superior qualifications. Further, several
engineers and other employees who worked with complainant during her
employment with the agency commended her for her performance and ability
to get along with others. The record also demonstrates that complainant
sought additional training from her supervisor during her employment.
Moreover, that complainant was a team player is demonstrated by the
record considered as a whole. While she may have been expected to be
silent regarding favoritism and not rock the boat, complainant remained
undeterred from pointing out favoritism and what she perceived as unfair
treatment.
Regarding complainant's alleged breach of security by allowing a process
server into the office to serve an employee, the agency has not produced
any written documentation of any such established protocol or any uniform
procedure which was to be followed at all times by the staff. This
finding is supported by affidavits in the record wherein some employees
stated they were unaware of the existence of a security protocol while
other employees provided varied explanations of the purported procedure.
Moreover, in her affidavit, complainant stated that she was in the process
of issuing a visitor's badge when the engineer to be served came up
to the front office and was served. She also stated that a short time
later the engineer came to the mail area to make copies of the served
documents and joked and laughed with her while he finished making copies
with the process server accompanying him. Complainant stated that the
engineer never made any complaint or remark to her. Further, there is
no affidavit from the engineer in the record.
We also do not find believable the agency's claim that complainant
knowingly violated a payroll order, was untimely with reports, or
failed to obtain appropriate approval. Moreover, the record does not
establish that it was complainant who improperly changed data on the
payroll records.
Although complainant has submitted an extensive rebuttal to the agency's
reasons, complainant has not shown by a preponderance of the evidence that
the agency's real reasons for terminating her were to mask prohibited
discrimination. What complainant's claim devolves to is that she was
terminated because she opposed favoritism in the workplace. However,
opposing favoritism is not a protected activity.
The agency's decision finding no discrimination is AFFIRMED.
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
July 22, 2009
__________________
Date
2
0120081150
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013