Salvatore K.,1 Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Dec 2, 2016

0120150104 (E.E.O.C. Dec. 2, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Salvatore K.,1
Complainant,

v.

Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120150104

Hearing No. 560-2012-00050X

Agency Nos. 9V1M11097,
9V1Ml1376,
9VlM12164

DECISION

On October 14, 2014, Complainant filed an appeal from the Agency’s September 15, 2014,
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. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Electronic
Integrated Systems Mechanic, WG-2610-13, at the Agency’s Tinker Air Force Base in
Oklahoma. On January 18, March 30, and May 11, 2011, Complainant filed EEO complaints
alleging that the Agency discriminated against him on the bases of sex (male) and in reprisal
for prior protected EEO activity. The complaints, which were amended and consolidated,
alleged discrimination against Complainant when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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1. on November 9, 2010, Complainant was decertified on his official Personal
Accountability Certification (PAC) training record; 2

2. on March 21, 2011, Complainant became aware he was rated “not qualified”
for the WS-2610-13, Electronics Integrated Systems Mechanic Supervisory
position;3

3. on or about August 4, 2011, management employed improper selection
procedures resulting in Complainant’s nonselection for the position announced
in WS-2610-13 Vacancy Announcement 1MAYINT308240810800, 566th
AMXS;4

4. on or about September 12, 14, and 23, 2011, management employed improper
selection procedures resulting in Complainant’s nonselection for the position
announced in WS-2610-13 Vacancy Announcement 11JULINTEANJOY377880,
564th AMXS;5 and

5. Complainant was subjected to discrimination in the form of harassment by
Agency actions including denial of certain temporary assignments; denial of
opportunities to work overtime; denial of annual leave; denial of access to
computers; nonselection for certain positions; exclusion from a meeting; a
lowered performance rating; assignment of an individual who had made threats
against Complainant to the same shift as Complainant; receipt of a Notice of
Proposed Suspension; receipt of a Notice of Involuntary Reassignment; and
denial of two hours of official time. 6

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). At Complainant’s request,
the matter was assigned to an AJ. The AJ conducted a three-day hearing at which 22 witnesses
testified. The AJ issued a 90-page decision on the merits finding that Complainant had not
proven he was discriminated against. The Agency issued a final order fully implementing the
AJ’s decision. From that order Complainant brings the instant appeal.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an Administrative
Judge will be upheld if supported by substantial evidence in the record. Substantial evidence is

2 Claim #1, Agency No. 9V1M11097
3 Claim #3, Agency No. 9V1M11097
4 Claim #1, Agency No. 9V1M11376
5 Claims ##2 & 3, Agency No. 9V1M11376
6 Claim #4a - q, Agency No. 9V1M11097; and Claims ##1-8, Agency No. 9V1M12164
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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
Administrative Judge's conclusions of law are subject to a de novo standard of review whether
or not a hearing was held.

To prevail on claims of disparate treatment such as those presented here, 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 where the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
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 Products, Inc., 530 U.S. 133 (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, supra; Pavelka v. Dep't of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995).

Claim #1 (Decertification)

The Agency explained that Complainant was “decertified,” i.e., temporarily disqualified from
aircraft maintenance work, because an aircraft on which he worked was found to have been
defectively repaired. A person who was not acquainted with Complainant discovered the
defect and reported it, resulting in Complainant’s decertification. This is a legitimate,
nondiscriminatory reason for the Agency’s action. Complainant argued that others were
responsible for the defect but the AJ found that the evidence showed that no other employee
had worked on the area of the aircraft in question. The AJ’s finding is supported by
substantial evidence. Complainant failed to show that the Agency’s explanation for its actions
is a pretext designed to conceal discriminatory animus.

Claim #2 (Rated “Not Qualified” for Supervisor Position)

According to the Agency, Complainant was declared to be “not qualified” for the WS-2610-13
supervisor position because the vacancy announcement mistakenly listed qualifications for the
position which had the effect of disqualifying all applicants for the position, not just
Complainant. The AJ found that the Agency’s explanation was supported by the evidence. AJ
Decision at 70. It is Complainant's burden of proof to demonstrate that similarly situated
employees were not treated equally. See Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 258 (1981). Because all applicants were treated equally in this situation, Complaint
cannot establish a prima facie case of disparate treatment discrimination.
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Claim #3 (Non Selection -Vacancy Announcement 1MAYINT308240810800)

The AJ determined that the Agency’s reason for not selecting Complainant for this supervisory
position was his tardiness and his habit of exhausting all leave available to him. This is a
legitimate, nondiscriminatory reason for the Agency’s action. Complainant does not dispute
that he used all the leave he earned but argues that it is inappropriate for the Agency to take his
leave use into account when considering his application for a supervisory position.
Complainant’s Appeal Statement at 12. We find no evidence that the Agency taking into
account an applicant’s routine failure to maintain a positive leave balance when determining
suitability for a supervisory position was based on any discriminatory factors and Complainant
failed to show that the Agency’s explanation for its actions is a pretext designed to conceal
discriminatory animus.

Claim #4 (Non Selection -Vacancy Announcement 11JULINTEANJOY377880)

Complainant contended that he was discriminated against when he was not selected for this
position because he was subjected to certain selection processes under what was known as the
Supervisor Development Program (SDP) while the selectee was not subjected to those
procedures. The AJ found as a fact that all applicants for this position were subjected to the
SDP procedures, concluding therefore that Complainant failed to establish a prima facie case.
The AJ also found that Complainant failed to show that his qualifications were “plainly
superior” to those of the selectee and that the Agency’s explanation for its actions was a
pretext designed to conceal discriminatory animus. The AJ’s finding are supported by
substantial evidence.

Claim #5 (Harassment)

With the exception noted below, all of the incidents cited by Complainant as part of a pattern
of harassment involve routine work assignments, instructions, and admonishments. They do
not rise to the level of harassment because they are common workplace occurrences. See Gray
v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) Unless it is
reasonably established that the common workplace occurrence was somehow abusive or
offensive, and was taken in order to harass Complainant on the basis of any of his protected
classes, such common workplace occurrences will not be found to be sufficiently severe or
pervasive to rise to the level of a hostile work environment or harassment as Complainant
alleges. See Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept.
12, 2014).

In order 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
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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). In order to meet the requirements of prong 4, 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 victim’s circumstances. Enforcement Guidance on
Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

Here, assuming that the incidents alleged by Complainant rise to the level of legally actionable
harassment, we find that the alleged discriminatory acts are not so severe or pervasive as to
alter the conditions of the Complainant's employment. Nor has Complainant established that
the actions of which he complains are linked to his claimed statutorily protected bases.

The exception noted involves an incident which Complainant characterized as a death threat
directed against one co-worker by another co-worker in Complainant’s presence. Complainant
claims to have feared for his personal safety as a result of the incident. Complainant’s Appeal
Statement at 8. An event of this type could form the basis for a claim of harassment. In this
case, however, the AJ determined that Complainant’s testimony that he feared for his safety
was “insincere, misleading and self-serving.” AJ Decision at 83. In fact, according to the AJ,
the threat was said in a joking manner and Complainant understood it as such. In order to
make out a claim of harassment, a complainant must show that he subjectively perceived the
statement as hostile or abusive. Harris v. Forklift Systems, Inc., 510 U.S. 21-22 (1993). That
was not the case here. The AJ concluded that Complainant understood at the time that the
“death threat” was said in jest. We conclude that Complainant has not established that he was
subjected to a hostile work environment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order implementing the AJ’s
finding that Complainant did not establish that he was discriminated against.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:
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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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
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time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 2, 2016
Date