Jerry A. Miles, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionAug 19, 2009
0120080999 (E.E.O.C. Aug. 19, 2009)

0120080999

08-19-2009

Jerry A. Miles, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.


Jerry A. Miles,

Complainant,

v.

Michael W. Wynne,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 0120080999

Agency No. 9H1C05016F06

DECISION

On December 19, 2007, complainant filed an appeal from the agency's

December 6, 2007 final decision 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. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant was

employed as a Materials Handler Supervisor, WS-2001-09, in the Logistics

Readiness Squadron, Nellis Air Force Base (AFB), Nevada. On August 9,

2004, complainant was promoted to the position of Material Manager.

As a new supervisor, complainant was required to successfully complete a

one-year supervisory probationary period. On August 5, 2005, management

issued a termination of supervisory probationary period indicating

that complainant failed to satisfactorily complete his probation.

Complainant was changed to a lower grade and assigned to the General

Supply Specialist, GS-2001-09, position.

On October 17, 2005, complainant filed an EEO complaint alleging that

he was discriminated against on the bases of race (African-American),

national origin (African-American), color (Black), and subjected to

hostile work environment when:

1. On May 26, 2005, he was subjected to a hostile work environment after

a verbal altercation and misunderstanding with his first line supervisor

(2Lt. JDB);

2. On August 4, 2005, he received a "Notice of Termination of Supervisory

Probation," four days before his probationary period was to successfully

end; and

3. he was treated differently because he was singled out as a probationary

supervisor.

At the conclusion of the investigation, 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). In accordance with

complainant's request, the agency issued a final decision pursuant to

29 C.F.R. � 1614.110(b). The decision concluded that complainant failed

to prove that he was subjected to discrimination as alleged.

In its FAD, the agency concluded that it had articulated legitimate,

non-discriminatory reasons for its actions that complainant failed

to show were a pretext for unlawful discrimination. Specifically,

2Lt. JDB testified that complainant received a Notice of Termination

of Supervisory Probation because he had not corrected his deficiencies

despite previous notifications. Cited deficiencies included failure

to keep his supervisor informed of his whereabouts during duty hours;

and failure to properly maintain the main warehouse, i.e., damages to

the property, excessive items at the warehouse, and warehouse's general

condition. Management also cited deficiencies on the Standard Asset

Tracking System (SATS) and the Supply Discrepancy reports. Regarding the

harassment claim, the agency found that complainant did not prove he

was subjected to harassment sufficiently severe or pervasive so as to

render his work environment hostile.

CONTENTIONS ON APPEAL

On appeal, complainant contends, among other things, that when he first

assumed his position the outside storage warehouse area was in "horrible"

condition, and numerous items in storage were not clearly identifiable.

Accordingly, complainant contends that he was not responsible for the

warehouse's poor conditions. Complainant also contends that during his

supervisory probation period he received an outstanding performance rating

on his annual Civilian Appraisal, as well as a Performance Award initiated

by his former supervisor, Captain MLF. Complainant alleged that shortly

after 2Lt. JDB replaced Captain MLF, he started having problems training

and communicating with him [2Lt. JDB]. Further, he contends that during

his supervisory probation period he had four different supervisors, and

that 2Lt. JDB had the least amount of logistics knowledge and supervisory

experience. Complainant stated that he always notified 2Lt. JDB about his

whereabouts, but most of the times he was visiting different work sections

because he tried to visit frequently all of his areas of responsibility.

Complainant also contends that the deficiencies on the Supply Discrepancy

Report dated back to 2002 and 2003, well before his arrival in the unit.

Complainant further contends that there was no established guidelines

on managing the SATS programs, so he developed local procedures and

guidelines, and implemented as well trained all subordinate supervisory

personnel on these procedures. Finally, complainant contends that even if

all things cited by management as rationale for terminated his probation

period were actually true, they did not justify the termination of his

probation.

In reply, the agency maintains that the analysis, findings, and

conclusions put forth in its FAD are correct. The agency contends

that complainant has not provided any evidence of pretext, and asks the

Commission to affirm the FAD.

ANALYSIS AND FINDINGS

As 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). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").

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 Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 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 Products,

Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509

U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of

the Navy, EEOC Request No. 05950351 (December 14, 1995).

In this case, the Commission assumes, arguendo, that complainant

established a prima facie case of unlawful discrimination. We find,

however, that the agency provided legitimate, non-discriminatory

reasons for its actions. Specifically, agency management stated that

it terminated complainant's supervisory probation period because of his

performances deficiencies. Complainant argued that his problems started

when 2Lt. JDB became his supervisor because under Captain MLF he was

rated "Outstanding." By letter dated October 11, 2005, complainant also

alleged that 2Lt. JDB did not properly understand the system due to his

"inexperience and lack of knowledge of the logistics business and the

responsibilities of the Material Management Flight." In the same letter,

complainant stated that 2Lt. JDB "abruptly" terminated him, without any

previous feedback regarding his performance.

First, we note that complainant was not rated "Outstanding," rather,

Captain MLF rated him as "highly average, meeting basic requirements."

Moreover, Captain MLF described complainant's work as a supervisor as "not

necessarily exceptional." We also note the record reflects that on June

9, June 30, and July 28, 2005, 2Lt. JDB informed complainant of several

deficiencies in his performance that needed improvement, which according

to 2Lt. JDB complainant ignored and took no actions to improve. Further,

we find complainant's disagreement with 2Lt. JDB over the business needs

of the agency does not prove that the agency's decision was motivated by

discriminatory animus. Without proof of a demonstrably discriminatory

motive, we do not second-guess an agency's personnel decisions. See,

e.g., Chavez v. United States Postal Service, EEOC Appeal No. 0120055246

(January 5, 2007); see also Carson v. Bethlehem Steel Corporation, 82

F.3d 157, 159 (7th Cir. 1982) (noting that "the question is not whether

the employer made the best, or even a sound, business decision; it is

whether the real reason [was discriminatory]"). Therefore, we find that

complainant failed to prove that the agency's articulated reasons for

its actions were pretext for unlawful discrimination.

Regarding complainant's claim of harassment, we note that harassment is

actionable only if the incidents to which complainant has been subjected

were "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); see also

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998); Cobb v,

Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

See Roberts v. Department of Transportation, EEOC Appeal No. 01970727

(September 15, 2000) (citing Benson v. City of Dundee, 682 F.2d 897

(11th Cir. 1982)). Further, the harasser's conduct is to be evaluated

from the objective viewpoint of a reasonable person in the victim's

circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc.,

EEOC Notice No. 915.002 (March 8, 1994).

To establish a prima facie case of harassment, complainant must show that:

(1) he is a member of a statutorily protected class; (2) he was subjected

to unwelcome verbal or physical conduct related to his membership in that

class; (3) the harassment complained of was based on his membership in

that class; (4) the harassment had the purpose or effect of unreasonably

interfering with his work performance and/or creating an intimidating,

hostile, or offensive work environment; and (5) there is a basis for

imputing liability to the employer.

We find under these standards, that complainant's claim of hostile work

environment must fail. A prima facie case of hostile work environment

is precluded based on our finding that complainant failed to establish

that the termination of his probationary period was motivated by

discriminatory animus. See Oakley v. United States Postal Service,

EEOC Appeal No. 01982923 (September 21, 2000). Further, we find that

the incident on May 26, 2005, was not sufficiently severe or pervasive to

create a hostile work environment. We also find no persuasive evidence

that the alleged harassment was motivated by unlawful animus towards

complainant's protected classes.

CONCLUSION

Therefore, after a review of the record in its entirety, including

consideration of all statements submitted on appeal, it is the decision

of the Equal Employment Opportunity Commission to AFFIRM the agency's

final decision because the preponderance of the record evidence does

not establish that discrimination occurred.

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

August 19, 2009

Date

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0120080999

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120080999

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