Stephan C. Buttice, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionFeb 10, 2009
0120083581 (E.E.O.C. Feb. 10, 2009)

0120083581

02-10-2009

Stephan C. Buttice, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Stephan C. Buttice,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120083581

Agency No. HS06TSA001602

DECISION

On August 15, 2008, complainant filed an appeal from the agency's July 17,

2008 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 deemed timely and 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 worked

as a Transportation Security Officer at the agency's St. Louis Lambert

International Airport facility in St. Louis, Missouri. On April 6, 2006,

complainant filed an EEO complaint alleging that he was discriminated

against on the bases of national origin (Italian American) and sex (male)

when:

1. In November 2005, complainant was notified that a supervisor (RMO1:

male, national origin unspecified) had used derogatory racial language;

2. In November 2005, complainant was not offered opportunities to work

overtime; and

3. In November 2005, RMO1 questioned complainant's use of leave under

the Family Medical Leave Act (FMLA) and questioned the authenticity of

a doctor's note provided in support of a leave request.

The agency conducted an investigation and subsequently 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. Specifically, the agency found that RMO1 denied making

the alleged remark and that, as regards the overtime claim, complainant

failed to show that he had requested overtime. As regards the FMLA leave

claim, the agency found that complainant's second level supervisor (RMO2:

female, national origin unspecified) and a Human Resources Specialist

(RMO3: female, national origin unspecified) averred that complainant

had requested FMLA leave to provide intermittent care for his pregnant

daughter but that he was using leave on a daily basis. On appeal,

complainant argues that the agency did not interview his supervisor

during the investigation, and did not subpoena the tax records of agency

employees to see who received overtime and who did not.

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").

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).

A single incident or group of isolated incidents will not be regarded

as discriminatory harassment unless the conduct is severe. Walker

v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the

harassment is sufficiently severe to trigger a violation of Title VII

[and the Rehabilitation Act] must be determined by looking at all the

circumstances, including the frequency of the discriminatory conduct,

its severity, whether it is physically threatening or humiliating, or

a mere offensive utterance, and whether it unreasonably interferes with

an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17

(1993).

Complainant alleges that he was told that RMO1 had said "these fucking

wops are as bad as niggers." Complainant, however, does not contend that

he heard the statement, or that it was made to him or in his presence.

RMO1 averred that he did not make the alleged statement. He averred

that he may have referred to Leave Without Pay as LWOP but that he

did not use the term "wop" or "nigger." Report of Investigation (ROI)

Exhibit F-4, p.2. RMO2 denied hearing RMO1 make the alleged statements.

ROI, Exhibit F-3, p.2. The record does not contain any statement from

a coworker who corroborates complainant's assertions concerning RMO1.

Complainant has therefore not met his burden of establishing, by a

preponderance of the evidence, that he was subjected to a hostile work

environment based on national origin or sex.

As regards the denial of overtime and the questioning of complainant's

leave, we note initially that, in the absence of direct evidence of

discrimination, the allocation of burdens and order of presentation

of proof in a Title VII case alleging discrimination is a three-step

process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973);

First, complainant must establish a prima facie case of discrimination

by presenting facts that, if unexplained, reasonably give rise to an

inference of discrimination, i.e., that a prohibited consideration was a

factor in the adverse employment action. McDonnell Douglas, 411 U.S. at

802. Next, the agency must articulate a legitimate, nondiscriminatory

reason(s) for its actions. Texas Department of Community Affairs

v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful,

then the complainant must prove, by a preponderance of the evidence,

that the legitimate reason proffered by the agency was a pretext for

discrimination. Id. at 256.

Complainant has not averred that he applied for overtime and was denied.

Instead he states:

In November 2005, I was assigned to the afternoon shift. Supervisors

on the morning shift were predominantly Black. These supervisors made

it a practice to assign overtime to their "friends," who were also

Black employees. Three Black employees . . . were always assigned

overtime hours. No one else got a chance to work these overtime hours.

I feel that based on my gender, as a White male, I was not given the same

opportunity to work overtime hours as other Black employees were given.

ROI, Exhibit F-1, p. 3.

Assuming arguendo that complainant has established a prima facie case,

we find that the agency articulated a legitimate, nondiscriminatory

reason for its action when the management official in charge of overtime

requests (RMO3: female, national origin unspecified) averred that "all

employees are given equal access" to overtime. ROI, Exhibit F-7, p. 2.

Complainant has not shown that the agency's articulated reason is a

pretext for discrimination.

Finally, as regards the scrutiny of complainant's FMLA leave requests,

agency officials articulated a legitimate, nondiscriminatory reason for

their actions. Specifically, RMO 2 averred:

It is standard procedure to conduct intermittent audits of leave usage by

all employees. If an unfavorable pattern of leave usage is identified,

that employee is issued a letter of instruction with regard to their

leave usage. During the course of one of these routine audits, it was

discovered that (complainant's) use of leave on Sundays established

a pattern. During this same time, (complainant) was granted leave

under FMLA for the purpose of assisting his daughter with things such as

doctor's appointments during her pregnancy. The criteria for his FMLA

approval and the medical documentation provided seemed to indicate that

the leave would be intermittent for the purposes approved. I discussed

this with (complainant) and he became very belligerent. I did not

question the authenticity of the doctor's note (complainant) provided;

however, I did question his use of leave for the purpose stated in his

FMLA request. ROI, Exhibit F-3, p. 3.

Complainant has not shown that the agency's articulated reason for its

action was a pretext for discrimination. Complainant contends that

the agency did not subpoena the tax records of coworkers to see which

coworkers received overtime. It is unclear how tax records would reveal

which employees received overtime since differences in income could be

due to any number of reasons unrelated to working overtime. In any event,

the burden of proving discrimination rests with complainant. See Burdine,

at 253. As regards the failure to obtain an affidavit from complainant's

direct supervisor (RMO4: male, national origin unknown) the record

shows that the Investigator tried to contact him but was unsuccessful

when messages left on RMO4's home and mobile telephone numbers were

not returned. ROI, Exhibit F-23. The record further reveals that RMO4

had transferred to another work facility. ROI, Exhibit F-22.

Based on a thorough review of the record and the contentions on

appeal, including those not specifically addressed herein, we find that

complainant has not met his burden of establishing, by a preponderance

of the evidence, that discrimination occurred. Accordingly, the FAD

is affirmed.

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

February 10, 2009

__________________

Date

2

0120083581

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120083581