0120064578-r
03-13-2009
George Taylor, Complainant, v. Ray LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
George Taylor,
Complainant,
v.
Ray LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120064578
Hearing No. 310-2005-00427X
Agency Nos. 2004-188202-FAA-05,
2005-19070-FAA-02
DECISION
On August 4, 2006, complainant filed an appeal from the agency's June
26, 2006, final order concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Supervisory Personnel Management Specialist/Manager of the
Labor/Employee Relations and Workforce Development Branch in the Human
Resources Division of the Southwest Region at the agency's facility in
Fort Worth, Texas.
On August 25, 2004, complainant filed an EEO complaint (complaint #1 -
DOT-2004-188202-FAA-05) alleging that he was discriminated against on
the bases of race (Caucasian), color (White), sex (male), and age (55),
when:
1. on approximately June 24, 2004, he learned that he received a lower
within-band pay increase and reassignment increase than similarly situated
coworkers.
On March 19, 2005, complainant filed a second EEO complaint (complaint
#2 - DOT-2005-19070-FAA-02) on the bases of race, color, sex, age and
in reprisal for prior protected EEO activity arising under Title VII
and the ADEA when:
2. on November 19, 2004, he learned he was being placed on a 90-day
detail to a Headquarters position; and
3. on November 23, 2004, he learned his duty location changed to office
space outside of the Southwest Regional Office.
At the conclusion of the investigation in complaint #1, complainant was
provided with a copy of the report of investigation and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing on June 13, 2005. On August
24, 2005, complainant requested that complaint #2 be consolidated for
processing with his hearing request for complaint #1. The AJ granted
complainant's request to consolidate his two complaints by Order dated
August 29, 2005. The AJ held a hearing on April 26-27, 2006 and on May
3, 2006. The AJ issued a bench decision on June 15, 2006.
In his decision, the AJ first noted that the hearing was conducted
in person in part, and telephonically in part. With respect to the
witnesses who testified telephonically, the AJ noted that this was
due to exigent circumstances and with the consent of both parties.
The AJ granted summary judgment with respect to issue 1, and did not
take testimony at the hearing on this issue. The hearing was confined
to testimony related to issues 2 and 3.
Regarding issue 1, the AJ found that complainant had failed to establish
a prima facie case of discrimination because he had not presented any
similarly situated employees who were treated more favorably than he for
pay increases in 2003 and 2004. The evidence presented showed that the
employees to whom complainant compared himself were receiving either
a promotion to a higher pay band or a reassignment increase, whereas
complainant was receiving a within-band increase.
Regarding issues 2 and 3, the AJ's decision addressed the issues
jointly as he found that the two issues were "bound closely together."
Complainant's third-level supervisor (MO-3), located in Washington,
D.C. at agency Headquarters, decided to detail complainant and his
first-level supervisor (MO-1) (African American, female, over 40, no
prior EEO activity) out of their respective positions to 90-day details,
located in office space other than their usual offices, in response to a
series of issues and complaints (filed in various forums) that were being
generated by employees in the Division they supervised. After several
attempts to address the office environment, MO-3 ultimately found it was
in the best interests of the agency to have a "cooling-off" period where
MO-1 and complainant were not in their assigned supervisory positions, and
not physically located near their employees. She notified complainant and
MO-1 that they would be detailed for 90 days each. MO-3 subsequently made
the reassignments permanent. MO-3 testified that it was her belief that
complainant should be located in a separate agency facility as several
employees felt threatened by complainant after he sent a letter in which
he intimated that he may have to sue two of the employees he supervised
for defamation, pursuant to statements made about him at an Office of
Workers' Compensation Programs (OWCP) hearing for one of the employees.
MO-1 was relocated to an office in a different part of the same agency
facility in which she usually worked.
The AJ found that complainant had not shown that his race and gender
were "motivating factors" in the agency's decision to detail him for
90 days to another set of duties. Although complainant theorized that
he was reassigned in order to provide "cover" to the agency's decision
to detail his supervisor, the AJ concluded that complainant had not
provided proof that MO-3 was in any way motivated by race or gender.
He also concluded that complainant had established a prima facie case
of reprisal for the 90-day detail. The AJ then found that the agency
had legitimate, nondiscriminatory reasons for its actions, namely the
complainant's action in sending the threatening letter to his employees,
and the general office environment. With regard to complainant attempting
to show that the agency's actions were pretext for discrimination,
complainant claimed that his performance and conduct did not warrant
the detail or his removal from the facility.
The AJ noted that complainant did not file a new EEO complaint regarding
his permanent reassignment, nor did he seek to amend complaint #2 to
include the permanent reassignment. Despite this, the AJ did address
the decision to permanently reassign complainant to other duties in
the Human Resources Division. He found that the agency's manner of
removing complainant from his assigned duties was "troubling," although
he ultimately concluded that there was sufficient cause for the removal.
The AJ concluded that the action to remove complainant (and MO-1) from
their positions was reasonable, and that there was no showing that
retaliation was the motivation for the 90-day detail.
Regarding issue 3, the AJ found that complainant had established a
prima facie case of race, gender and reprisal, and that the agency
provided legitimate, nondiscriminatory reasons for assigning complainant
to a different facility, while keeping MO-1 in the same building.
He found that complainant had not shown those reasons to be pretext
for discrimination.
The AJ stated that "overall" he found no discrimination and he entered
judgment in favor of the agency. The AJ did not specifically address
complainant's claim of age discrimination for issues 2 and 3 in his
decision.
The agency subsequently issued a final order, dated June 26, 2006,
adopting the AJ's finding that complainant failed to prove that he was
subjected to discrimination as alleged. Complainant timely filed the
instant appeal.
CONTENTIONS ON APPEAL
On appeal, complainant argues that he has successfully proven his claim
of retaliation, and that the AJ applies the incorrect legal standards
when evaluating complainant's claim. The agency submitted a brief in
opposition to complainant's appeal.1
ANALYSIS AND FINDINGS
Issue 1
In rendering this appellate decision, with respect to issue 1, we must
scrutinize the AJ's legal and factual conclusions, and the agency's final
order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a
"decision on an appeal from an agency's final action shall be based on a
de novo review . . ."); see also EEOC Management Directive 110, Chapter
9, � VI.B. (November 9, 1999) (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,"
and that EEOC "review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003);
Murphy v. Department of the Army, EEOC 01A04099 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment "where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition." Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to
a motion for a decision without a hearing).
The AJ granted summary judgment regarding issue 1 and in his bench
decision, he delineated his reasons for doing so. The AJ found that
complainant had not shown a prima facie case of discrimination on any
basis because he had not provided similarly situated employees who had
been treated more favorably.
We find that the AJ's issuance of a decision without a hearing regarding
issue 1 was appropriate, as no genuine issue of material fact is
in dispute. A review of the record confirms the AJ's analysis of
this issue, and we find that complainant failed to establish a prima
facie case of discrimination. We also note that the employees to whom
complainant compares himself are not similarly situated in that he was
a supervisor and the employees were those on his team or on the team of
the other supervisor in his unit. As such, they are not substantially
similar to complainant. We affirm the finding of no discrimination with
respect to issue 1.
Issues 2 and 3
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).
We note that the hearing testimony of several witnesses was telephonic. We
have held that testimony may not be taken by telephone in the absence
of exigent circumstances, unless at the joint request of the parties
and provided specified conditions have been met. See Louthen v. United
States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006); Sotomayor
v. Department of the Army, EEOC Appeal No. 01A43440 (May 17, 2006); Rand
v. Department of Treasury, EEOC Appeal No. 01A52116 (May 17, 2006).2
Here, we find that exigent circumstances existed because the witnesses
who testified by telephone were in remote locations. Therefore, we find
the AJ's use of telephonic testimony to have been appropriate.
Turning to the merits of complainant's claims, we find that the AJ's
findings of fact and conclusions of law were supported by substantial
evidence in the record. We find no basis to disturb those findings
on appeal. Therefore, based on a thorough review of the record and
the contentions on appeal, including those not specifically addressed
herein, we AFFIRM the agency's implementation of the AJ's finding of
no discrimination.
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
March 13, 2009
Date
1 We note that neither party specifically addressed complainant's age
claim in their briefs on appeal. The Commission exercises our discretion
to review only the issues specifically raised in complainant's appeal.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 9-10 (November 9, 1999).
2 In Louthen, the Commission promulgated its policy regarding
the taking of telephonic testimony in the future by setting forth
explicit standards and obligations on its Administrative Judges and the
parties. Louthen requires either a finding of exigent circumstances or a
joint and voluntary request by the parties with their informed consent.
When assessing prior instances of telephonic testimony, the Commission
will determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. In Sotomayor,
we further held that where telephonic testimony was improperly taken,
the Commission will scrutinize the evidence to determine whether the
error was harmless.
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0120064578
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
8
0120064578