Harvey Kaplan, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionOct 16, 2000
01991072 (E.E.O.C. Oct. 16, 2000)

01991072

10-16-2000

Harvey Kaplan, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.


Harvey Kaplan v. Department of Transportation (Federal Aviation

Administration)

01991072

October 16, 2000

.

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 19848

Washington, D.C. 20036

Harvey Kaplan,

Complainant,

v.

Rodney E. Slater,

Secretary,

Department of Transportation

(Federal Aviation Administration),

Agency.

Appeal No. 01991072

Agency No. DOT2952219R

Hearing No. 100-97-7262X

DECISION

Harvey Kaplan (complainant) timely initiated an appeal from the agency's

final decision (FAD) concerning his equal employment opportunity (EEO)

complaint of unlawful 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.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant alleges he was discriminated against on the basis of religion

(Jewish) and in retaliation for prior EEO activity when, on or about

May 20, 1994, his contract with a private contractor was canceled due

to unsolicited derogatory information provided by the agency.

BACKGROUND

The record reveals that complainant, a former Supervisory Management

Analyst at the agency's Office of Information Technology in Washington,

D.C., filed a formal EEO complaint with the agency on November 4, 1994,

alleging that the agency had discriminated against him as referenced

above.

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). Following a hearing, the AJ issued a decision

finding no discrimination.

The AJ first clarified the facts that gave rise to the complaint,

as follows: On November 1, 1993, complainant was transferred from

his former position with the agency, to the Special Projects Office

(later known as �CORN�), which was headed by a department head (DH)

and his deputy (D1). At some point in November 1993, complainant

filed an informal complaint of discrimination against DH. Before this

matter was concluded, complainant, with the help of a former colleague,

received a job offer to work at a private consulting firm as a consultant.

This private firm (US) had contracts with the agency. Complainant retired

from the agency on April 30, 1994 and began working at US on May 3, 1994.

On or around May 20, 1994, D1, who had retired from the agency, called

an Agency Contracting Officer's Technical Representative (TR) and left a

message criticizing complainant's competency and indicating that neither

he nor DH had been satisfied with complainant's performance. TR forwarded

this information to the Technical Representative responsible for oversight

of the contracts with US (TR1). TR1 called the Vice President of US (VP)

and passed on the information received originally from D1. Based on

this information, VP and the President of US terminated complainant.

The AJ concluded that complainant failed to establish a prima facie case

of religious discrimination because complainant failed to establish

that any non-Jewish individuals were treated more favorably than he,

or to present other evidence that created an inference of religious

discrimination. Specifically, the AJ noted that while D1's comments

regarding complainant's performance were vindictive and unsupported,

D1 was retired when he called TR and the agency was therefore not

responsible for the action. Furthermore, the AJ noted that although

complainant testified that D1 had, in the past, made derogatory comments

about complainant's religion, this testimony was uncorroborated and

allegedly occurred a time period long before the action at issue. The AJ

noted that complainant failed to establish that the other individuals

involved in the action�TR and TR1�had any discriminatory motivation when

they passed on the negative information they received. The AJ also found

that complainant did not establish that DH or the other former supervisor

named by complainant, were involved in the negative phone call.

The AJ then found that complainant failed to establish a prima facie case

of retaliation. He noted that while complainant engaged in prior protected

activity, only DH was aware of that activity and DH was not involved

in the phone call. The AJ determined from this that complainant failed

to establish a causal connection between his prior EEO activity and the

adverse action. The AJ reiterated that the agency was not responsible

for D1's actions and that, in any case, there was no evidence that D1,

TR or TR1 were motivated by complainant's prior EEO activity.

The AJ went on to hold that the agency articulated a legitimate

non-discriminatory reason for its contact of US. Specifically, TR

testified that he passed along D1's statements to TR1 because that was the

appropriate place for such information to be forwarded. TR1 noted that he

then contacted US because he had concerns about US hiring an individual

with whom D1, an individual trusted by TR, was so dissatisfied that he

called TR to make unsolicited negative comments. Concluding that although

complainant was a victim of D1's vindictiveness and the hasty prejudgement

of TR1, he failed to establish by a preponderance of the evidence that

he was subjected to discrimination, the AJ recommended a finding of

no discrimination. The agency adopted the recommended decision.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the AJ erred when he found that

the agency was not responsible for the actions of D1, citing cases in

which the Commission held that it may examine the allegedly biased

motivations of third parties whose recommendations may have tainted

the action at issue. Complainant also contends that DH did play a role

in complainant's termination. Specifically, complainant refers to DH's

affidavit in which he acknowledged that he was aware that someone had made

a telephone call criticizing complainant's performance. Complainant also

refers to the agency's responses to certain Interrogatories, in which it

noted that DH believed he was told by TR about D1's call. Complainant

also notes that he attended a conference shortly before the actions at

issue took place, where he spoke with DH and informed him of his job

at US. Complainant concludes that there is sufficient circumstantial

evidence to establish that DH played a role in the telephone call that

led to his termination. Complainant also notes that a reasonable person

would not have taken an unsolicited negative reference at face value,

but would have checked its validity.

Complainant then argues that the AJ erred when he found no causal

connection between the termination and complainant's prior EEO activities.

Complainant notes that he filed an informal complaint against DH in

November 1993 and that DH played a role in complainant's termination,

which took place the following Spring.

The agency provides no response.

FINDINGS AND ANALYSIS

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).

After a careful review of the record, the Commission finds that the AJ's

decision summarized the relevant facts and, for the most part, referenced

the appropriate regulations, policies, and laws. Although the AJ made

an error of law, we discern no basis to disturb the AJ's ultimate finding

of no discrimination.

Complainant is correct that Commission precedent holds that the

Commission may examine the allegedly biased motivations of third

parties whose recommendations may have tainted the action at issue,

even if the agency does not have authority over those third parties.

See Stokes v. Department of Defense, EEOC Appeal No. 01933573 (May 16,

1994) request for reconsideration denied, Stokes v. Department of Defense,

EEOC Request No. 05940737 (December 14, 1995). There is no question in

the case at hand that D1's comments caused TR and TR1 to contact US,

which, in turn, caused complainant's termination. Indeed, the agency

does not dispute this description of the chain of events that led to

complainant's termination. Thus, the AJ's determination that the agency

is insulated from a finding of discrimination due to the fact that D1

was not an employee is erroneous.

Despite this error, however, the AJ's factual findings are supported by

substantial evidence and lead to the conclusion that complainant failed

to establish that he was subjected to discrimination or retaliation.

Specifically, the AJ found that D1 was not aware of complainant's prior

protected activity. There is nothing in the record to establish that

anyone other than DH was aware of this activity. Therefore, D1 could

not have been motivated by retaliatory animus when he called TR.

Furthermore, the AJ determined that DH, who was aware of complainant'

prior protected activity, was not involved in D1's actions. Complainant

attempted to establish that DH was involved by noting that he spoke with

DH about his work for US shortly before D1 called TR. The AJ determined,

however, that DH was not involved in D1's action and this determination is

a reasonable one based on the paucity of complainant's evidence linking

DH to the phone call. As no one who was aware of complainant's prior

protected activity was involved in the adverse action, the finding that

complainant failed to establish that he was subjected to retaliation is

proper.

Moreover, the AJ found that there was insufficient evidence to establish

that D1 was motivated by discriminatory animus towards complainant's

religion. While complainant testified that D1 had, in the past, made

disparaging comments related to his religion, the AJ determined that these

comments did not suffice to establish that D1's call to TR was motivated

by discriminatory animus. After a thorough review of the record, we agree

with this determination. The comments allegedly made, involving the need

to hold the remainder of a meeting after sundown at the synagogue and D1's

habit of referring to Jewish employees as �Brother� instead of �Mister,�

while offensive to complainant, are insufficient to establish that the

negative comments made by D1 were motivated by religious discrimination.

Accordingly, although we find that D1's actions were vindictive and that

his comments concerning complainant's poor performance were unsupported by

the record, we find no basis on which to disturb the AJ's findings that

D1 was not motivated to take this adverse action by a discriminatory or

retaliatory animus. Therefore, we AFFIRM the agency's adoption of the

AJ's finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

October 16, 2000

__________________

Date

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.