Roy Ozawa Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionNov 14, 2002
01A14486 (E.E.O.C. Nov. 14, 2002)

01A14486

11-14-2002

Roy Ozawa Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


Roy Ozawa v. Department of the Air Force

01A14486

November 14, 2002

.

Roy Ozawa

Complainant,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A14486

Agency No. ELOR00005

DECISION

INTRODUCTION

This appeal involves a dispute between Roy Ozawa (�complainant�) and the

Department of the Air Force (�the agency�), his employer. At all relevant

times, complainant worked for the agency as a Maintenance Mechanic

Supervisor at the agency's Elmendorf Air Force Base in Alaska. He filed

a formal equal employment opportunity complaint against the agency on

or around March 23, 2000, alleging that the agency had discriminated

against him unlawfully on the basis of his race (Tlinglit Indian) by

(1) failing to consider him for a newly created Maintenance Mechanic

Supervisory position; (2) transferring some of his subordinates away

from his agency �zone� and into a newly-created �zone�; (3) misplacing

his Supervisor's Employee Brief (agency Form 971); (4) conducting a

desk audit that did not accurately reflect his skills or the number of

personnel assigned to him; and (5) generally harassing him about his

job performance and leave taken. Complainant thus essentially claimed

that the agency had violated Title VII of the Civil Rights Act of 1964

(�Title VII�), as amended, 42 U.S.C. � 2000e et seq.

The agency addressed these allegations in a final agency decision (�FAD�)

issued on or around June 26, 2001. In this FAD, the agency analyzed

complainant's complaint as raising claims of race-based disparate

treatment and harassment. The agency ultimately concluded, though,

that complainant had not proven any illegal employment discrimination

had occurred. After receiving this FAD, complainant promptly filed a

notice challenging the FAD with us, the United States Equal Employment

Opportunity Commission (�EEOC� or �this Commission�). We accepted

complainant's notice and docketed it as this appeal.

We are now issuing this decision under the authority granted to us by

29 C.F.R. � 1614.405(a). Under this same regulation, we must review

the FAD in question de novo (or �anew�). See 29 C.F.R. � 1614.405(a).

This means that in deciding this case, we can accept (if accurate)

or reject (if erroneous) the agency's factual and legal conclusions.

See Equal Employment Opportunity Management Directive for 29 C.F.R. Part

1614 (rev. Nov. 9, 1999) (�EEO MD-110�), at 9-15. Accordingly, we have

carefully reviewed the entire record before us in our attempt to discern

whether a preponderance of the evidence warrants a rejection of the

agency's determinations � or supports any finding of illegal employment

discrimination here. See 29 C.F.R. � 1614.405(a). We conclude that it

does not.

Complainant's complaint raises claims of Title VII-proscribed race-based

disparate treatment and/or harassment. With respect to complainant's

disparate treatment allegations, where there is no direct evidence of

any illegal motive for the agency actions in question, an evidentiary

�burden of production� is placed initially on the complainant to put

forth a prima facie case of unlawful discrimination. The complainant

may do so by presenting facts which, if unexplained, reasonably give rise

to an inference of discrimination (i.e., that a prohibited consideration

was a factor in the relevant adverse employment actions). If complainant

successfully establishes such a prima facie case, the evidentiary burden

of production then shifts to the agency to articulate legitimate,

non-discriminatory reasons for its ostensibly objectionable conduct.

If and when the agency offers such a lawful explanation, the evidentiary

burden of production shifts (one last time) back to the complainant to

show that the explanation offered is but a pretext for the agency's true,

prohibited discriminatory intent. See McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567

(1978); Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24

(1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248

(1981); United States Postal Service Board of Governors v. Aikens, 460

U.S. 711 (1983); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);

and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).

Notwithstanding these shifting burdens of production, however, in any

Title VII claim of disparate treatment, the complainant at all times

carries the ultimate burden of persuading the finder of fact � by a

preponderance of (albeit circumstantial) evidence � that he or she

was a victim of intentional discrimination. See, e.g., Sweeney, 439

U.S. at 29 (Stevens, J., dissenting); Burdine, 450 U.S. at 256; Aikens,

460 U.S. at 716; St. Mary's Honor Center, 509 U.S. at 507, 511, 518;

and Reeves, 530 U.S. at 143. Complainant has not met this burden here

with respect to his various claims. Even if we assume for argument's

sake that he satisfied his initial obligation to put forth a prima facie

case of race-based disparate treatment, the agency responded accordingly.

That is, and as the agency explained in its FAD, the agency provided

various legitimate, non-discriminatory reasons for the agency actions

complainant questioned. In our view, complainant failed to prove that

the agency's facially legitimate, non-discriminatory explanations

were a pretext for any prohibited motivation. The preponderance of

the evidence simply does not support the notion that complainant was

treated disparately because he is Tlinglit Indian. Cf. St. Mary's Honor

Center, 509 U.S. at 515, 519 (holding that �a reason cannot be proved

to be �a pretext for discrimination' unless it is shown both that the

real reason was false, and that discrimination was the real reason�

for the defendant's employment action, and noting that �[i]t is not

enough . . . to disbelieve the employer; the fact finder must believe

the plaintiff's explanation of intentional discrimination�).

Similarly, the record does not support a finding that complainant

was subjected to any sort of prohibited harassment, either. As this

Commission's guidance points out:

the anti-discrimination statutes are not a �general civility code.�

Thus, federal law does not prohibit simple teasing, offhand comments,

or isolated incidents that are not �extremely serious.� Rather, the

conduct must be �so objectively offensive as to alter the �conditions'

of the victim's employment.� The conditions of employment are altered

only if the harassment culminated in a tangible employment action or

was sufficiently severe or pervasive to create a hostile work environment.

EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer

Liability for Unlawful Harassment by Supervisors (June 18, 1999) (web

version) (�Vicarious Liability Enforcement Guidance�), at 4 [internal

notes and citations omitted].

Complainant appears to be asserting that the agency engaged in unwelcome

conduct that culminated in a �hostile work environment.� Even if we

assume for argument's sake that the agency actions of which complainant

complained were severe or pervasive enough to create a hostile work

environment (and we do not think they were), we still could not find

the agency liable for unlawful harassment here. To prove a case of

harassment under Title VII, complainant must demonstrate that agency

officials harassed him because he is Tlinglit Indian. See Vicarious

Liability Enforcement Guidance, at 4 (providing that �[h]arassment does

not violate federal law unless it involves discriminatory treatment on

the basis of race, color, sex, religion, national origin, age of 40 or

older, disability, or protected activity under the anti-discrimination

statutes�). As we noted above, however, we are not convinced the

agency took any of the challenged actions because of complainant's

race. Consequently, we cannot hold the agency liable for illegal

harassment-based discrimination, either.

Therefore, we conclude that the FAD in question should be affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if 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 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; see also EEO MD-110, at 9-18. 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 the

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with the 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)

Complainant has the right to file a civil action in an appropriate United

States District Court within ninety (90) calendar days from the date that

complainant receives this decision. If complainant files a civil action,

complainant 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 complainant's case in court. �Agency� or �department�

means the national organization, and not the local office, facility or

department in which complainant works. If complainant files a request

to reconsider and also files a civil action, filing a civil action will

terminate the administrative processing of the complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If complainant decides to file a civil action, and if complainant does

not have or cannot afford the services of an attorney, complainant may

request that the Court appoint an attorney to represent complainant and

that the Court permit complainant 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.; and 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 complainant's 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 entitled

�Right to File A Civil Action.�

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 14, 2002

__________________

Date