0120102326
09-17-2010
Clarence Rucker, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Clarence Rucker,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120102326
Hearing No. 570-2008-00362X
Agency No. DOT-2007-20859-FAA-01
DECISION
On May 7, 2010, Complainant filed an appeal from the Agency's April 2, 2010, 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. The Commission deems the appeal timely and accepts it for de novo review, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issue presented is whether the AJ properly issued a decision without a hearing, in favor of the Agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Specialist, 2152, ATC-12 at the Washington Center in Leesburg, Virginia. On June 22, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Mixed) and color (black) when, on September 30, 2006, he was given a letter for wearing boots, that were not appropriate under the new FAA Dress Code, while a similarly situated employee was told that his jacket did not meet the new code, however, he was not given a similar letter by management.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's June 15, 2009, motion for a decision without a hearing and issued a decision without a hearing on March 19, 2010.
AJ Decision without a hearing
The AJ initially noted that although there was some indication that Complainant was seeking consolidation of the instant complaint with other complaints that he had filed, there was actually no such motion for consolidation filed, but that even if he had been asked to consolidate the complaints, he would have declined to do so because the issues were not like or related to the instant complaint.2
The AJ then found as follows: On September 30, 2006, Complainant arrived at work wearing leather boots that did not meet the CBA standard of business casual, according to his Operations Supervisor (OS). OS admonished Complainant that his shoes were inappropriate under the CBA dress code and required him to leave the premises to change his shoes. Complainant went to his car and changed his shoes. OS gave Complainant a form memo counseling him to comply with the dress code provision of the CBA.
The AJ found that on about September 30, 2006, the Operations Manager (OM) considered a jacket being worn by E1 (Caucasian male), another employee and CBA member, to be inappropriate attire under the CBA dress code. OS asked E1 to remove the jacket, but subsequently allowed him to wear the jacket for the remainder of the shift due to medical reasons. The jacket worn by E1 was later determined by the Assistant Facility Manager (AFM) to be appropriate business casual attire. On October 16, 2006, in a Memorandum to Complainant, the Acting Air Traffic Manager stated that OS was addressing Complainant's inappropriate dress in accordance with the new CBA.
The AJ next found that, on October 16, 2006, the Union filed a grievance concerning Complainant, captioned DRESS CODE. The AJ concluded that Complainant made an election of filing a grievance rather than pursuing an EEO complaint, and he therefore, dismissed the instant complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
The AJ then nevertheless proceeded with his analysis, assuming arguendo that the complaint was not subject to dismissal. The AJ did not make a finding concerning whether Complainant established a prima facie case of discrimination, but found that the Agency articulated reasons for its actions, as follows: Complainant was wearing boots that did not comport with the dress code established by the then new CBA. Complainant was treated no differently than other employees. In this respect, the Agency stated that E1 was not a similarly situated employee because his jacket was determined to be appropriate attire under the CBA dress code. Additionally, Complainant's supervisor asked E1 to remove the jacket, but subsequently allowed him to wear it for the remainder of the shift due to medical reasons relating to his being cold. The AJ noted that Complainant's supervisor was not the person who initially considered the jacket to be inappropriate. OS stated that she received confirmation from the AFM that E1's jacket was appropriate. The Agency further stated that it used a standard form letter to notify Complainant that his dress, wearing shoes (boots) was inappropriate, and that such a standard form letter is used for all employees governed by the aforementioned CBA.
The AJ noted that Complainant asserted that he has a "tendency to be outspoken, and voice my opinion when I see injustices and wrongdoings. I do not think that management likes the ideas of a black person voicing opinions that differ from theirs. So, I was singled out, and chosen to be made example of." The AJ found that Complainant failed to offer any evidence of a genuine dispute as to the materials facts surrounding this matter, and that Complainant failed to adduce any evidence that the he was singled out because of unlawful discrimination by the Agency, or that the Agency's articulated reasons were pretext. Moreover, he failed to present facts that created a genuine dispute as to whether the Agency's enforcement of its dress code policy by the issuance of a letter of warning to Complainant was unlawfully motivated.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant raises no new arguments. The Agency asks the Commission to affirm the final order.
ANALYSIS AND FINDINGS
The allocation of burdens and order of presentation of proof in a Title VII case alleging disparate treatment discrimination is a three step procedure: complainant has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination; the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its challenged action; and complainant must then prove, by a preponderance of the evidence, that the legitimate reason offered by the employer was not its true reason, but was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Here, the Commission finds that Complainant has not established a prima facie case of discrimination. He has not identified a similarly-situated individual who was treated more favorably. Complainant's identified comparator (white) was allowed to wear the jacket which was originally deemed inappropriate, because of medical reasons. Complainant has not presented evidence to refute that the comparator had medical reasons for needing to wear the jacket.
Complainant stated that a Black male (M1), and a white male (M2) were also issued a letter for the same or similar reasons. However, Complainant noted that M2 felt his letter was given to him based on retaliation and that the dress code was used against him to punish him for speaking out. Complainant stated that M2 filed an official complaint. Complainant also named two other white males who he contends were never given similar letters, however he has not shown that management was aware that these individuals wore clothing that was prohibited. We find that Complainant has not presented evidence from which we could draw an inference of race/color-based discrimination.
Further, the AJ correctly found that the Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, Complainant wore shoes that management deemed to be inappropriate under the CBA dress code and he was required to leave the premises to change shoes. Complainant went to his car and changed shoes. OS gave Complainant a form memo counseling him to comply with the dress code provision of the CBA. In an attempt to establish pretext, Complainant complained about the letter's tone, in particular, that it indicated that he was "undermining the public's confidence in air safety." We discern no persuasive evidence that the Agency was motivated by race or color-based discrimination in this instance.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's decision without a hearing was appropriate, as no genuine issue of material fact is in dispute.3 See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). 4 Therefore, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
_____9/17/10_____________
Date
1 The Agency initially dismissed the complaint on the grounds that Complainant had filed a grievance on the matter, but in Rucker v. Dep't of Transportation, EEOC Appeal No. 0120071648 (August 1, 2007), the Commission reversed the dismissal and remanded the complaint for further processing, because we found no evidence that Complainant had in fact made a prior election to use the grievance process. The Commission then noted that as a harassment claim, the dress code claim should be dismissed for failure to state a claim pursuant to 29 C.F.R. � 1614.107 (a)(1). However, when considered separately, the claim did allege a present harm or loss to a term, condition or privilege to Complainant's employment.
2 The AJ only listed one Agency number in his decision, which was DOT-2007-20859-FAA-01, however, in the final order there were additional Agency numbers listed as well. Regardless, we find that the issue stated above concerning the dress code is the only issue before the Commission, and it is the only issue decided herein. It appears that in June 2010, another final order was issued by the Agency which addressed Complainant's other complaints.
3 Because of our decision above, we do not find it necessary to address the AJ's dismissal of Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
4 In this case, we find that the record was adequately developed for the AJ to issue a decision without a hearing.
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0120102326
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102326