0120133032
08-06-2015
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120133032
Hearing No. 560-2011-00113X, 560-2012-00224X
Agency No. 9V1M09208, 9V1M10364R
DECISION
Complainant filed an appeal from the Agency's May 22, 2013, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked at the Agency's Tinker Air Force Base, 76th Aircraft Maintenance Group, 76th Air Force Maintenance Wing facility in Oklahoma City, Oklahoma. He served as a Production Controller and formerly was assigned as a Sheet Metal Mechanic.
On May 15, 2009, Complainant contacted an EEO Counselor. On August 26, 2009, Complainant filed an EEO complaint (Agency Number 560-2011-00113X) alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on April 8, 2009, Complainant was offended when he saw a hangman's noose as he walked over to the Wing Tip Shop Building.
On August 3, 2010, Complainant sought counseling regarding a second incident. On September 23, 2010, he filed complaint (560-2012-00224X) in which he alleged a hostile work environment occurred, when, on July 13, 2010, he became aware that a hangman's noose was found near a co-worker's computer in the 135 Tanker Dock 3 area.
The Agency accepted the first complaint, but it dismissed the second complaint for failure to state a claim. The Commission reversed the dismissal. EEOC Appeal No. 012011978 (January 6, 2012).
The pertinent facts are as follows.
Claim 1 - Complainant saw a "noose."
On April 8, 2009, Complainant observed a rope noose, as he was walking to the Wing Tip Shop, located in Building 3001. He said the noose was approximately one foot off the floor and attached to a metal beam that ran parallel to the wall at an angle. Hearing Transcript, p.71.
He reported the matter to his supervisor (African-American). The supervisor went to the location and saw the item. The supervisor told Complainant the rope was actually a cord that he thought was used as a door stop. Complainant testified that while his supervisor was examining the rope, another employee walked by and stated that she thought the cord could be used to hold the door open. Complainant took a picture of the "noose."
The supervisor asked Complainant if he was "okay" and Complainant stated that he was. Complainant did not leave the workplace or ask for a break. The supervisor reported the matter to his supervisor. The incident was reported to the Employee Relations, which advised that the cord be taken down. The supervisor, from the area in which the cord was located, asked if anyone put up the cord. It was never determined who placed the cord on the wall area. Hearing Transcript 139-140.
The record does not show who put the item there. The rope was removed by management on the third day after Complainant first reported the "noose."
Claim 2 - Co-worker informed Complainant about a "noose" near his work station.
With regard to the second incident, Complainant testified that a co-worker, who was a friend, sent Complainant a text message, via mobile phone, with a photo of earplugs that the co-worker found and which had been tied like a noose. The co-worker testified that on July 13, 2010, he was working in Building 3001 when he discovered a set of disposable earplugs in his work area. The ear plugs were attached by string cords and the cords were fashioned in noose-lie knots. He also testified that the earplugs were the same variety worn by all employees who worked in the area.
Complainant proceeded to walk over to the co-worker's work station, but when he arrived, the co-worker was being interviewed by the Security Police. Complainant testified that he did not actually see the earplugs, "because the Security Police, or someone else, had removed them." When Complainant returned to his work area, he reported the incident to his supervisor, who then reported the incident to his supervisor. Complainant was upset and was granted permission to leave the work premises.
Thereafter, management investigated and the co-worker provided a statement about the incident to the Security Police. Management continued to monitor the situation to prevent any further incidents.
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 a United States Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Following the remand and after Complainant requested a hearing, the Agency requested that the AJ consolidate the two cases. Complainant did not object. The AJ granted the motion to consolidate.
The AJ held a hearing on December 19, 2012. Five witnesses testified. Four of the five were African-American. One witness testified that it was not unusual to find the earplugs tied in knots in the workplace. She did that, too and she is an African-American. She testified that on one occasion, she was told by a supervisor to stop knotting her earplugs because there had been a complaint about the tying of knots in the earplugs.
It was never determined who left the earplugs shaped like a noose in the area.
The AJ Decision
The AJ found Complainant did not show discrimination or reprisal against him. The AJ found that there was "conflicting testimony about the rope that Complainant identified as a noose." His African-American coworkers, and African-American supervisor, testified that they perceived the item to be a cord that was utilized to hold a door open by the door knob. The AJ concluded that Complainant failed to prove that what he found "was actually a noose."
The AJ also found that Complainant failed to show that he was subjected to an adverse action (that the cord was actually a noose) or that management personnel was involved or that it was done to retaliate against Complainant. The AJ next found that management took appropriate immediate action and the cord was removed.
With regard to the second incident, the AJ found that the Agency was not liable for the act in question. The AJ concluded, "That while Complainant has established that the act complained of constituted harassment (the earplug noose), the Agency took prompt remedial action and cannot be held liable in this case." The AJ found that the supervisors and Security were called to the area, the Security Police took statements, pictures were taken, Employee Relations was called, and, for a period of six months, the supervisor personally conducted weekly walks in the area to look for any inappropriate items.
Next, the AJ found that Complainant's claim for reprisal also fails. He was not subjected to an adverse action because the earplug noose was not left in Complainant's work area and Complainant never saw the earplug noose. The AJ also reasoned that Complainant failed to show a nexus between the earplug noose and his past protected activity.
Further, the AJ stated that he found Complainant's testimony was not credible because Complainant stated that he had filed two complaints, even though he had filed a prior complaint in 2007. The AJ entered judgment in favor of the Agency.
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.
ANALYSIS AND FINDINGS
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 discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Disparate Treatment
Title VII at Section 717 states that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based on . . . race." 42 U.S.C. �2000e-16(a).1 To prevail in a Title VII disparate treatment claim such as this, Complainant must 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). We find that the record supports the determination that Complainant did not show that he was subjected to discrimination because of his race.
Similarly, a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Complainant did not show that he was subjected to an adverse action by the agency or that a nexus existed to any prior EEO activity by the Complainant.
Harassment
In addition, harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Parker v. Dept. of Navy, EEOC Appeal 0120100303 (July 20, 2012). In determining whether an objectively hostile or abusive work environment existed, the trier of fact should consider whether a reasonable person in the complainant's circumstances would have found the alleged behavior to be hostile or abusive. A single incident involving the intentional placement of a hangman's noose may be severe enough on its own to constitute a hostile work environment. See Posey v. U.S. Postal Service, EEOC Appeal 01986619 (July 10, 2001).
In this case, the preponderance of the evidence supports the conclusion that the item was not a hangman's noose. Instead, the testimony was that the item was actually intended for use as a door stop. The item was not found in Complainant's work area and it was located only a foot off the floor.
With regard to the second item, Complainant acknowledged that it was not in his work area and that he did not see the item.
Assuming for purposes of analysis that being subjected to a nefarious object in the workplace constitutes harassment, the inquiry then becomes whether the record shows that the Agency should be held liable for the harassment. Liability would be established if there was a showing that the Agency failed to take immediate and appropriative corrective action. See Parker v. Dept. of Navy, EEOC Appeal No. 0120100303 (July 20, 2012).
In this case, we agree with the AJ that Complainant failed to make that showing. There is no evidence that management committed, or condoned this alleged action. Moreover, the Agency took appropriate action to remedy the situation based on the Agency's available information.
The AJ considered the totality of Complainant's evidence during a hearing, but was not persuaded that Complainant had shown by a preponderance of the evidence that any Agency's actions were due to unlawful race discrimination or retaliatory animus.
In reaching his decision, the AJ made credibility findings based on the testimony at the hearing. Those findings are entitled to due deference.
For all of these reasons, we discern no reason to overturn the decision.
CONCLUSION
Accordingly, we AFFIRM the 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 tends 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
August 6, 2015
__________________
Date
1 The AJ's decision inadvertently referred to Section 703 of Title VII, which addresses only private sector claims. Section 717 pertains to federal sector employment claims.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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