0120081672
02-27-2012
Harold Phifer, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Harold Phifer,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120081672
Hearing No. 330-2006-00014X
Agency Nos. 2005-19574-FAA-05 & 2006-20175-FAA-05
DECISION
On February 27, 2008, Complainant timely filed an appeal from the
Agency’s January 25, 2008, 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 Commission accepts the appeal 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 are: (1) whether there is substantial evidence in the
record to support the EEOC Administrative Judge's (AJ) determination that
Complainant failed to establish that he was subjected to discrimination
based on race, age, and reprisal when he was decertified from his Air
Traffic Controller position; and (2) whether Complainant established
that he was subjected to a hostile work environment as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Air Traffic Control Specialist, AT-2152, at the Agency’s Houston
Air Route Traffic Control Center (Houston ARTCC). Report of Investigation
(ROI), No. 2005-19574-FAA-05, at 3. On February 15, 2005, Complainant was
monitoring air traffic when his first-level supervisor (S1) (Caucasian
male) observed two aircrafts on radar, under Complainant’s authority,
heading towards each other. Id. at Ex. F-2. S1 observed that Aircraft 1676
was overtaking and converging with a slower plane, Aircraft N220N. Id. S1
hurried over to Complainant’s work area to alert him of the situation,
but Complainant had already corrected it. Id. S1 suddenly observed
that another plane, Aircraft 3272, was climbing dangerously to the
altitude and location of Aircraft N220N and instructed Complainant to do
something. Id. Complainant radioed to Aircraft 3272 to take the heading of
090. Id. S1 told Complainant take further action to maintain separation
of the aircrafts. Id. Following S1’s instructions, Complainant radioed
Aircraft 3272 to the heading of 0100, and radioed Aircraft N220N to
descend 2,000 ft. to Flight Level (FL) 250. Id.
Approximately five minutes later, S1 monitored Aircraft N220N on an
unusual course. Instead of descending, Aircraft N220N flew a directional
heading to FL 250, ascending 2,000 ft. Id. Aircraft N220N was now on
a direct head-on collision course with another plane, Aircraft 2176, a
commercial airliner. Id. S1 again hurried over to Complainant’s work
area. Id. Thereafter, Complainant radioed Aircraft N220N once again to
descend. Id. Immediately, Aircraft 2176 radioed that they were responding
to a safety alarm in the cockpit: a Resolution Advisory (RA) issued by
the plane’s Traffic Collision and Avoidance System (TCAS) alerted the
pilot that another plane was on a collision course. Id.1 Complainant
radioed Aircraft 2176 to climb and maintain FL 270. Id. Aircraft 2176
responded, “Negative, sir, we have an RA and we are descending.”
Id. The planes came dangerously close to each other, but Aircraft 2176
avoided the collision. Hr’g Tr., at 504.
Additionally, during this situation, Complainant had attempted to separate
the above aircraft by mistakenly clearing Aircraft 2043 to fly to the
heading of FL 360. Id. It was found that Complainant had miscalled the
plane, and Aircraft 2043 was not on Complainant’s frequency and not
involved in the situation. Id.
After conducting a preliminary investigation, S1 determined that the
matter was a pilot deviation and error, which was confirmed by the
Agency’s Quality Assurance. Hr’g Tr., at 509. The Flight Standards
District Office (FSDO) also reviewed the incident, but determined that it
was not a pilot deviation. Id. at 481. S1 noted that the incident could
have been considered an operational error against Complainant. Id. After
reviewing Complainant’s February 15, 2005, performance, S1 decided
to decertify Complainant on all radar and radar-associated control
positions. ROI, No. 2005-19574-FAA-05, at Ex. F-4a-5. The Operations
Manager (OM) concurred with S1’s decision to decertify Complainant. In
a memorandum dated February 18, 2005, S1 notified Complainant of his
decertification, and listed the training requirements that Complainant
needed in order to obtain recertification. Id. The memorandum also
noted that Complainant was being decertified because his performance was
previously found to be deficient on December 11, 2003, and November 12,
2004, requiring enhancement training. Id.
In September 2005, while undergoing training and attempting to
recertify, Complainant along with another employee (Caucasian male)
were medically disqualified from performing radar positions within
the control room by the Regional Flight Surgeon. Hr’g Tr., at 118,
145, 272. Complainant reported to the Flight Surgeon that he was taking
medication for night sweats and insomnia due to the stress from his work
environment. Id. at 145. In order to conserve sick leave, management
assigned Complainant and the coworker to A-side duties, which required
the delivery of computer generated flight tracking progress strips to
Air Traffic Controllers. Id. at 119.
On November 8, 2005, Complainant’s second-level supervisor (S2)
(Caucasian male) received complaints that Complainant, while performing
A-side duties, had been taking notes and monitoring the performance
of other Air Traffic Controllers. ROI, No. 2006-20175-FAA-05, at
37. Thereafter, S2 held a meeting with Complainant and Complainant’s
union representative instructing Complainant that performance observation
was not the job of employees performing A-side duties. Id.
On December 12, 2005, Complainant, while in the control room observing,
responded to an Air Traffic Controller by saying, “You’re filling
up my book.” Hr’g Tr., at 438. That same day, the Air Traffic
Controller told Complainant, “I can hear you sucking your teeth.”
Id. at 410. The Air Traffic Controller then asked Complainant to move
away from behind her. Id. at 624. S2 noticed that Complainant was not
delivering flight tracking progress strips at the time and asked him
to move away from behind the Air Traffic Controller. Id. Thereafter,
on December 13, 2005, S2 issued Complainant a memorandum advising him
that: 1) he was a distraction in the air traffic control room; 2) his
gum chewing was disturbing his coworkers; 3) he was threatening to his
coworkers because they perceived him to be scrutinizing their work; and
4) he should seek assistance from the Employee Assistance Program. ROI,
No. 2006-20175-FAA-05, at 37. On December 20, 2005, Complainant sent a
letter objecting to the December 13, 2005, memorandum asserting, among
other things, that it was capricious, malicious, and retaliatory. Id. at
39. In response to Complainant’s letter, on December 27, 2005, S2
issued Complainant a second memorandum instructing him “not to create
distractions, intimidate, or engage in other behavior that creates a
less than desirable working environment.” Id. at 53.
On May 23, 2005, and August 2, 2006, respectively, Complainant filed the
above captioned EEO complaints alleging that the Agency discriminated
against him on the bases of race (African-American), age, and reprisal
for prior protected EEO activity2 when:
1. he was decertified and sent to remedial training in February 2005;
2. he was subjected to a hostile work environment when:
a. management told him not to ask any air traffic controllers about
anything pertaining to his EEO case;
b. he was told to only perform A-side duties and was prohibited from
being involved in the working of air traffic, including observing and
speaking with his coworkers;
c. he was labeled as a spy, troublemaker, and a lunatic, and was called
a liar by management.
d. on December 13, 2005, he was issued a memorandum advising him that he
was a distraction in the control room; his gum chewing was disturbing
his coworkers; he is threatening his coworkers because they perceived
him to be scrutinizing their work; and he should seek assistance from
the Employee Assistance Program; and
e. on December 27, 2005, Complainant was issued a memorandum directing
him “not to create distractions, intimidate, or engage in any
other intimidating behavior that creates a less than desirable work
environment.”
At the conclusion of the investigations, the Agency provided Complainant
with a copy of the reports of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing, which the AJ held on February 8, 9, and 10,
2007. The AJ issued a decision in favor of the Agency on January 10,
2008. The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected him
to discrimination as alleged.
Specifically, with respect to claim 1, the AJ noted that the Agency
articulated a legitimate, non-discriminatory reason for its actions. In
particular, the AJ noted that although the February 15, 2005, incident
was determined not to be an operational error on Complainant’s part,
S1 decided to decertify Complainant based on the totality of the
circumstances. The AJ noted that Complainant was required to complete
enhancement training in December 2003 and November 2004 because of
his performance. The AJ noted that Complainant lacked control over the
situation and made some errors on February 15, 2005. The AJ noted that
Complainant failed to present sufficient evidence that the Agency’s
reasons were pretextual. The AJ found that Complainant failed to
establish that he was decertified and sent to remedial training based
on a discriminatory animus.
Regarding claim 2, the AJ found that the alleged instances did not
rise to the level of a hostile work environment based on race, age,
and reprisal. The AJ noted that other Air Traffic Controllers outside of
Complainant’s protected classes were treated the same or similarly when
losing medical clearance to perform radar. The AJ noted that the December
13, 2005, memorandum was properly issued based on Complainant’s conduct
in the control room. The AJ noted that Complainant was “hovering”
over Air Traffic Controllers and making comments that they were “filing
his book.” The AJ noted that the December 13, 2005, memorandum was
reduced to writing based on Complainant and his union representative’s
November 8, 2005, request. The AJ noted that Complainant failed to provide
evidence that management called him a lunatic, a liar, or a spy. The AJ
found that the December 27, 2005, memorandum issued to Complainant was
not based on his race or age. The AJ found that Complainant failed to
establish a retaliatory hostile work environment claim. The AJ found
that incidents alleged were not sufficiently severe or pervasive to
alter the terms or conditions of his employment. The AJ therefore did
not find that Complainant was subjected to discrimination or a hostile
work environment based on race, age, or reprisal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he had 16 years of good performance
before he was decertified. Complainant contends that his annual
performance appraisals and quarterly reviews were fully satisfactory
until he came under S1’s supervision. Complainant asserts that
the Houston ARTCC has 457 Air Traffic Controllers and only 32 are
African-American. Complainant contends that S1’s instructions on
February 15, 2005, were improper and violated the Collective Bargaining
Agreement between the Agency and the National Air Traffic Controllers
Association (NATCA). Complainant contends that all five Air Traffic
Control Specialists who testified at the hearing indicated that it was
unprecedented for a pilot deviation to be charged against an Air Traffic
Controller. Complainant contends that there is no evidence that any
other Air Traffic Controller had ever been decertified from every radar
position. Complainant contends that Air Traffic Controllers testified
that his decertification was racially motivated.
Complainant further contends that the criteria used to measure his
progress in recertifying were different and more onerous than the criteria
used for Caucasian comparators. Complainant contends that comments on
his recertification forms became more negative and critical after S1 and
the OM received knowledge of his EEO complaint. Complainant contends that
the temporal proximity between management’s notice of the EEO complaint
and the negative evaluations support his claim of reprisal. Complainant
contends that African-American employees were treated less favorably than
many Caucasian Air Traffic Controllers. Lastly, Complainant contends
that the delay in time from the February 2007 hearing to the issuance
of the AJ’s decision on January 10, 2008, prejudiced him.
STANDARD OF REVIEW
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 for 29 C.F.R. Part 1614 (MD-110), Chap. 9,
at § VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must
generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed
with in this case with respect to Complainant's claims, however,
because the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. 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 a pretext for discrimination. Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000); St Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842;
Pavelka v. Pep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review, we find that the AJ's finding of no discrimination
is supported by substantial evidence of record. We find that
assuming, arguendo, that Complainant established a prima facie
case of discrimination based on race, age, and reprisal, the Agency
articulated legitimate, nondiscriminatory reasons for its actions;
namely, that Complainant committed errors on February 15, 2005. ROI,
No. 2005-19574-FAA-05, at Ex. F-2. In particular, S1 explained that
Complainant failed to maintain adequate separation of the aircrafts
involved. Id. S1 also explained that Complainant had previously gone
through skill enhancement training in December 2003 and November 2004 due
to performance issues. Id. Also, the OM explained that on February 15,
2005, Complainant was not aware that one aircraft refused Complaint’s
direction to climb, which resulted in both planes descending nearly
causing a collision. Id. at Ex. F-3. The OM further explained that
Complainant had also mistakenly called a plane by the wrong call sign
during the situation. Id.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden of
proving by a preponderance of the evidence that the Agency's articulated
reasons were a pretext for discrimination. Complainant can do this
directly by showing that the Agency's preferred explanation is unworthy
of credence. Burdine, 450 U.S. at 256. In an attempt to show pretext,
Complainant states that it was unprecedented for a pilot deviation to be
charged against an Air Traffic Controller. Complainant contends that there
is no evidence that any other Air Traffic Controller had been decertified
from every radar position. Complainant states that other Air Traffic
Controllers testified that his decertification was racially motivated.
Notwithstanding Complainant’s contentions, while testimony reveals
that Air Traffic Controllers are generally not decertified for pilot
deviations, the record reflects that the November 15, 2005, incident
was a dangerously rare situation that could have resulted in a mid-air
collision between two aircraft. There is no dispute that Complainant
was the Air Traffic Controller in charge of monitoring these aircraft
at the time and committed errors. Hr’g Tr., at 45. There is also no
dispute that the two aircraft involved improperly flew extremely close
to each other, which another Air Traffic Controller characterized as a
“near miss.” Hr’g Tr., at 191. The record reflects that the minimum
required separation for aircrafts is 1,000 feet of altitude (vertical
separation) and five miles distance (horizontal separation). Id. at
504. We note that S1 testified, “[T]hat was the … second scariest
thing I [have] ever seen in my career.” Id. S1 testified that the
planes were “.2 miles in 100 ft.”3 of each other. Id. Taking into
account the circumstances surrounding the February 15, 2005, incident,
we concur with the AJ that Complainant has failed to establish that
management’s actions were based on his protected classes. We note
that other Air Traffic Controllers outside of Complainant’s protected
classes have also been decertified on radar positions by management for
monitoring errors. ROI, No. 2005-19574-FAA-05, at Ex. F-4a-7.
Hostile Work Environment
To establish a claim of harassment a complainant must show that: (1)
he belongs to a statutorily protected class; (2) he 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 his statutorily protected class; (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; and (5) there
is a basis for imputing liability to the employer. See Henson v. City
of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must
have been “sufficiently severe or 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). The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable
person in the complainant’s circumstances. EEOC Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002, at 2
(Mar. 8, 1994). In determining whether an environment is “hostile”
or “abusive,” a trier of fact must consider all the circumstances,
including the following: the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with
an employee's work performance. Harris, 510 U.S. at 23.
After a careful review of the record, we discern no basis to disturb
the AJ's conclusion that Complainant failed to establish a claim of
harassment. Here, we find that substantial evidence in the record supports
the AJ's finding that the alleged harassment was not sufficiently severe
or pervasive to rise to the level of a hostile work environment. In
finding so, we note that EEO regulations are not a “general civility
code” and forbid “only behavior so objectively offensive as to alter
the condition of [a complainant]'s employment.” Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 80-81 (1998). Thus, federal law
does not prohibit simple teasing, offhand comments, or isolated incidents
that are not “extremely serious.” Faragher v. City of Boca Raton,
524 U.S. 775, 787 (1998).
We concur with the AJ that Complainant has failed to present evidence
that he was referred to as a spy, troublemaker, a lunatic, or a liar by
management. We also find that these reported references by management
do not rise to the level of a hostile work environment. We further find
that Complainant has failed to establish that the Agency’s actions were
motivated by his protected classes. Specifically, the record reflects
that Complainant was assigned to work A-side because he was no longer
certified to work on radar. Hr’g Tr., at 119. The record also reflects
that other Air Traffic Controllers felt distracted by Complainant’s
behavior in the control room while he was performing A-side duties. Id. at
567. Accordingly, we concur with the AJ that Complainant has failed
to establish that he was subjected to a discriminatory hostile work
environment.4
CONCLUSION
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the Agency's final order is AFFIRMED
because the AJ's decision is supported by substantial evidence.5
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 27, 2012
Date
1 A Resolution advisory (RA) is a warning issued by a plane’s Traffic
Collision Avoidance System (TCAS) indicating an immediate threat of
collision with another aircraft. This warning takes the form of a cockpit
command to perform a vertical avoidance maneuver.
2 Complainant did not have any EEO prior protected activity before his
May 23, 2005, complaint.
3 This means that the aircraft were separated by only 100 feet of altitude
and two-tenths of a mile distance.
4 With respect to Complainant’s claims regarding recertification, we
concur with the AJ’s findings that these matters were not accepted
claims as reflected in Complainant’s complaints and the Agency’s
Reports of Investigation. Although the AJ discussed Complainant’s
recertification claims in her decision, we note that the AJ did not allow
Complainant to develop the record with respect to those claims. Hr’g
Tr., at 237-239, 333.
5 In her decision, the AJ does not acknowledge the near year delay
between the hearing and the issuance of her decision. However, we are
not persuaded that the delay prejudiced Complainant as he alleges. In her
decision, the AJ cited to both the investigative record and the hearing
transcript in support of her factual findings and made credibility
determinations based on witness testimony. There is no evidence in
the record to support a finding that her credibility determinations
are unworthy of credit, and we conclude that her factual findings are
supported by substantial evidence.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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