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.