0120091824
08-27-2009
Samuel Willis, Jr., Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Samuel Willis, Jr.,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120091824
Agency No. 9B1C06005
Hearing No. 430-2007-00210X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 20, 2009 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
On August 3, 2006, complainant filed the instant formal complaint. Therein, complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race (African-American) and in reprisal for prior protected activity when:
1. beginning January 2005, his first-level supervisor continuously devalued his work and contributions, threatened to eliminate and/or downgrade his position, threatened to revoke his security clearance, threatened to reassign, excluded him from meetings and discussions, removed his duties and assigned him to less prestigious lower-graded work;
2. on July 21, 2006, he was not selected for the position of Security Specialist, GS-0080-11;
3. in April 2007, he did not receive a Superior Performer award; and
4. in June 2007, he received a lowered mid-term feedback appraisal.1
The record reflects that a hearing was held before an EEOC Administrative Judge (AJ) on February 12, 2008. After considering the testimony of the witnesses, the AJ issued a decision on January 23, 2009, finding no discrimination. Therein, the AJ determined that complainant failed to establish a prima facie case of race and reprisal discrimination. Further, the AJ determined regardless of whether complainant established a prima facie case of discrimination, the agency articulated legitimate, nondiscriminatory reasons for its actions. Finally, the AJ concluded that complainant did not prove, by a preponderance of the evidence, that the agency's proffered reasons for its action were a pretext for discrimination.
With respect to complainant's harassment claim, the AJ found that complainant did not prove he was subjected to harassment sufficiently severe or pervasive so as to render his work environment hostile. The AJ further cautioned the agency that "in order to promote successful working relations, supervisors must understand that favoritism, preferential treatment, and pre-selection have no place in federal employment. Also, supervisors must receive proper training on home to interact with a diverse work group of civilian and military employees."
Regarding claim 1, complainant's supervisor (S1) denied complainant's allegations that he devalued his work and contributions, threatened to eliminate and/or downgrade his position. S1 acknowledged that he did not change his employees' COREDOC [Core Personnel Document] because "it wasn't a top priority." S1 stated that in May 2006, he changed complainant's COREDOC, and that it was based on "what I thought the duties should be for that position. As the manager of that position, I determined those duties. As well as what [complainant] requested, that certain things be removed from his COREDOC that he didn't do. That being Industrial Security and Personnel." S1 further stated although complainant asked him to remove the Reports and Analysis duties from his COREDOC, he did not remove them. Specifically, S1 stated "I needed someone to work in Reports and Analysis. And that duty was in his original COREDOC, and I needed him to do the work."
S1 stated that he did not perceive complainant's downgraded COREDOC reflecting a GS-7 grade as a threat. S1 further stated that he did not intend to downgrade complainant but to fulfill the requirements that the Chief and Commander told him to do. Specifically, S1 stated "I did not reflect a grade of GS-7 until I was directed by [a named Chief] and [ a named Commander] to put what I thought it would grade out as. Classifiers determine the grade level of civilian positions."' S1 further stated that he told the Chief and Commander that based on the duties, he estimated that it was a GS-7. S1 stated that two named employees were upgraded to the GS-11 level while complainant's position was not upgraded because "I didn't feel that the position needed to be upgraded."
S1 stated that he never threatened complainant with elimination of his position and revocation of his security clearance. Specifically, S1 stated "on at least three occasions, [complainant] came to me about changing his Core Document (CD) and asked if there was a RIF (Reduction in Force) whose position would be eliminated. I asked if he knew anything about there being a RIF. He said 'no.' I told him that if I had to weed out a position that it would be his. But there was never a threat to eliminate him...at no time has the question of his security clearance been mentioned in any of our discussions." With respect to complainant's allegation that S1 threatened to reassign him, S1 stated "no. I never threatened him. We discussed realigning his duties but we did not discuss reassigning him; there was no other position in the unit to move him to."
With respect to complainant's allegation that S1 excluded him from office discussions and policy decisions, S1 stated "I rarely hold meetings and I don't make policies." S1 stated that complainant told him that he wanted to do a weekly meeting and "I told him that if he had a topic that needed to be addressed to the whole office to come to me and I would schedule a meeting but otherwise I didn't believe in having a set time to have an office meeting. If I went to a meeting outside the office and needed to relay information to my people, I normally sent it to them by email. I don't know what policies he is talking about."
The Commander (C1) stated that during the relevant time complainant's position was not downgraded. Specifically, C1 stated that around June or July 2006, complainant expressed his concerns about several employees being promoted to the GS-11 level and that he was upset because S1 threatened to downgrade him to a GS-7. C1 stated that he told complainant that was not true and that "it was impossible. I'm the only one that could downgrade your position, and I'm not going to do that. And I agree, I think you should be a GS-11. So I would like to work a couple of things . . . even put somebody up to fill that job, and we'll have some 11's open." C1 stated that when complainant left "he seemed like everything was okay between us." C1 also stated that during their discussion, complainant was "upset about having to do work on his COREDOC because that's not what he was hired to do. He did not say it was harassment or anything like that."
C1 stated that he was aware of S1's determination to have complainant do more traffic tickets in Reports and Analysis because of the increased workload. Specifically, C1 stated that "the wing was really worried about speeding. We had somebody hit over by our main base gym. They were in a pedestrian walk, and one of the cards came through speeding and hit somebody. So we got directed to pick up the efforts in that regard." C1 stated that he and S1 had different management styles, and that S1 "was by the books, he was no nonsense, everything had to be done a specific, certain way. And he was the chief and he was on an inspector general team, so he just seemed to be brought up in that mentality." Furthermore, C1 stated that he felt that S1 was unpleasant and "[I] - - try to be positive. I'm more outgoing. And I think [S1] thought that was weak about me. He thought I should be meaner."
Regarding claim 2, the record reflects that 31 candidates, including complainant, applied of the position of Security Specialist, GS-008-11 and were considered qualified for the three available positions. The record further reflects that the selectees were ranked as number four, five and eight respectively while complainant was ranked as number three.
C1 stated that he was the selecting official for the subject positions. C1 stated that he did not want S1 to be the selecting official "because of the previous EEO complaint. I wanted to make sure I did it. And I knew it was going to be a difficult decision. So as the commander, I thought it should be mine." C1 further stated that he did not conduct interviews and instead he reviewed the civilian career briefs that showed all of the candidates' job histories and training. C1 stated that it came down to four employees, including complainant, and that they "were obviously very qualified. And that was a very tough decision for me." C1 stated that he went by the career briefs and he selected the three named employees for the subject positions "because they were in the positions doing the job longer than anyone else." C1 stated that complainant's race and prior protected activity were not factors in his determination not to select him for the subject position. Furthermore, S1 stated "I know there is some tension between [complainant] and [S1] but it has nothing to do with race. I was closest to [complainant] than any of the people I promoted. His race had nothing to do with the promotion."
Regarding claim 3, the record reflects that in March 2007, the Air Combat Command Office of Inspector General conducted a unit compliance inspection (UCI) of the First Fighter Wing. The record further reflects that per the Superior Performer Program guidelines, any Inspector General could nominate an employee or team as a superior performer; and that the program also encouraged squadron commanders "to recommend unit members and teams who have made exceptional contributions to their unit's mission and are worthy of consideration for superior performer recognition." Specifically, the AJ noted that the guidelines states "The inspector must personally verify the team or individual's performance, and the nominee must normally be present during the inspection or assessment."
The record reflects that during the UCI, the inspection team named 17 employees as superior performers and out of the 17 employees, 6 were in complainant's area. During his testimony, complainant testified that he was not present during the inspection and did not speak to the IG team.
C1 testified that he tried to get complainant the award. Specifically, C1 stated "I had directed [named agency official] to try to get [complainant] added. And [a named agency official] had come back to me and said no."
Regarding claim 4, S1 denied complainant's allegation that he meant to retaliate against him when he rated him as "N/A" in "Is a skilled leader" and when he rated him with a middle grade in "Is an enthusiastic follower" and "adapts well to new demands." S1 stated that he rated complainant as needing improvement in the "adapts well to new demands" because he still needed to learn some aspects of the job. S1 stated that on four separate occasions complainant told him he did not want to do his job and he responded saying "it's in your COREDOC, you need to do the job. That's a job I've tasked you to do." S1 stated that the midterm feedback was not meant to hurt complainant's record but was meant to simply as a tool to motive him to become more skilled and enthusiastic in his new position.
On appeal, complainant argues that the AJ erred in finding no discrimination. Complainant further argues, for example, the AJ's reasoning for finding no harassment was "logically flawed and internally inconsistent." Complainant further argues that the AJ erred by allowing the agency "to relay on a vague, conclusory, and generally lame excuse for selecting the three incumbents for the promotion, even as she acknowledged the evidence of preselection and favoritism to the white employees." Complainant asserts he has "greater" experience, training, education and qualifications than any of the three identified employees.
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 a discriminatory intent existed is a factual finding. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
As an initial matter, we find that complainant, on appeal, has not provided any persuasive argument regarding the propriety of the AJ's finding of no discrimination. Therefore, after a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.2
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 27, 2009
__________________
Date
1 The record reflects that during the October 24, 2007 pre-hearing conference, an EEOC Administrative Judge allowed complainant to amend his formal complaint by including claims 3 - 4.
2 On appeal, complainant does not challenge an agency September 14, 2006 partial dismissal regarding two other claims (that he was discriminated against on the basis of race when from September 2004 through June 2006, he was required to work off an incorrect core document, which does not accurately reflect his job title, percentage of duties performed and organizational location; and in December 2005, he was not upgraded or provided an opportunity to compete for three GS-0080-11, Security Specialist positions while three white co-workers were all non-competitively promoted). Therefore, we have not addressed these issues in our decision.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120091824
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091824
8
0120091824