0120073620-Woods
04-15-2010
Percy Woods, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Percy Woods,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120073620
Agency No. 9H1C05004
DECISION
On August 10, 2007, complainant filed an appeal from the agency's July
31, 2007 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 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 Motor Vehicle Operator, WG-5703-07, Dispatch Support Unit, Vehicle
Operations Section, at the Nellis Air Force Base (AFB), in Nevada;
a position he has held for approximately 19 years.
The record reveals that on April 13, 2005, complainant filed a formal
EEO complaint alleging that he was discriminated against on the bases
of race (Black) and color (Black) when:
1. on April 11, 2005, he was told that he was no longer the training
person (driver), and he was ordered to move out of the office he used
for training;1
On June 15, 2005, complainant filed a second EEO complaint alleging that
he was discriminated against and subjected to ongoing harassment on the
bases of race (Black), color (Black) and reprisal for prior EEO activity
when:
2. he was treated differently than the other civilian employee (E1)
(Hispanic/Brown), who was assigned to the same Air Force Core Personnel
Document (AF Form 1003), and shared the same title, series and grade as
complainant.2
On July 21, 2005, complainant filed his third complaint alleging
discrimination based on reprisal when:
3. on April 29, 2005, his evaluation was down graded; and
4. on May 16, 2005, he was reassigned to the Document Cargo
Section.3
The agency consolidated the three complaints at issue herein for
investigation and further processing. At the conclusion of the
investigation, complainant was provided with a copy of the report of
investigation and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). When complainant did not request a
hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the
agency 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.
On November 30, 2009, complainant's attorney submitted a "Statement in
Support of Claimant's Appeal." We determine that the statement was not
timely.4
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").
To prevail in a disparate treatment claim such as this, 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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming arguendo, that complainant established a prima facie case
of discrimination on the covered bases, the Commission nevertheless
determines that the agency has articulated legitimate, nondiscriminatory
explanations for its actions. We also find that complainant has presented
no evidence that the agency's actions were more likely than not, motivated
by discriminatory animus.
Claim 1
Complainant alleged that on April 18, 2005, management removed the
responsibility for training and ejected him from the storage space
he occupied. Complainant alleged that management removed him from the
training office, and that resulted in a reduction in his abilities to
conduct his responsibilities efficiently and effectively. The Master
Sergeant, Vehicle Operations Supervisor (MSgt),5 stated that complainant
was directed to vacate the storage space because he did not need an
office to fulfill his responsibilities, and other employees complained
because they did not have offices. However, complainant's training
duties remained in his Care Personnel Document (CPD), and he was still
expected to train new people. Management also testified that a Vehicle
Operator's "office" was their vehicle, and that everything complainant
needed for training was in the training section. Thus, complainant
still had somewhere to store his training materials and records.
Claim 2
Complainant alleged that E1 was only assigned the responsibility for
driving small vans and passenger vehicles, and never had to drive the
larger shuttle buses like him. Complainant alleged that the agency placed
an unfair burden on him because E1, who was also a civilian employee hired
under similar circumstances, should have been required to perform the same
duties as him. Complainant alleged that E1 was never required to drive a
bus or train because he did not have the appropriate commercial driver's
license (CDL). Complainant contends that E1 never obtained his license,
and nothing ever happened to him. Consequently, complainant alleged that
E1 could not share the driving duties with him, and therefore complainant
was required to do all the shuttle driving. Complainant stated it was
unfair that E1 was paid as a bus driver, but never required to drive one.
Whenever complainant asked his supervisors about this, they told him
that E1 told them he was planning to retire.
Management explained that complainant and E1 were first hired at the WG-05
level to drive the base taxis. Over time, that service was discontinued,
their PDs were rewritten and upgraded. The agency further stated that
both men were promoted, but neither was required to perform the full
range of duties of their WG-5703-07 positions until the First Lieutenant,
Commander (1Lt), became the Flight Chief. Management also explained that
initially, their positions did not require them to have a CDL, but when a
new law was passed, their position descriptions were changed accordingly.
The agency stated that both complainant and E1 were given written notice
on March 2 or 3, 2005, that they each had ninety days to obtain a Class
A CDL. Complainant obtained his Class A CDL after the ninety days period
and after his performance appraisal. E1 never obtained his CDL at all,
so complainant was more qualified and was able to drive more types of
vehicles. Management also testified that complainant was assigned to
drive buses for some time previously because he had a Class B CDL,
and E1 did not have such a license. The agency further stated that
complainant was not the only person who drove buses or who was assigned
to drive the route to Indian Spring.
The agency also stated that when E1 was asked to obtain his license, E1
kept saying he was going to retire as a reason for not taking the test.
The agency stated that E1's former supervisors accepted E1's excuse,
did not press the issue, and worked around it. The agency further
explained that Flight Commanders changed about every six months.
With such frequent turnover, it is unsurprising that E1 was allowed to
get by without the appropriate CDL for a time, especially considering
his excuse. E1 retired on May 31, 2005.
Claim 3
The agency utilizes an acceptable/unacceptable (pass/fail) appraisal
system to measure and assess the performance of employees. The Civilian
Rating of Record is comprised of three distinct parts: Performance
Elements, Appraisal Factors-Manner of Performance, and Overall Performance
rating. The Appraisal Factors-Manner of Performance portion of the
Civilian Rating of Record (Part F) is used to predict employee performance
at higher levels. This is accomplished by rating the employee against
nine appraisal factors that each have a scale ranging from one (Very Poor)
to nine (Outstanding), for a total possible composite score of 81.
Complainant is contesting two components of his April 2005's performance
appraisal: the rating for Performance Element 1, and the ratings received
in Part F of the performance appraisal. Specifically, complainant alleged
that after he filed the EEO complaint, he received a rating of "Does Not
Meet" in Element 1, and received lower scores in the Appraisal Factors.
The record shows that on May 3, 2005, complainant's performance
appraisal for rating period April 1, 2004, through March 31, 2005
was issued. Complainant received an overall performance rating of
"Unacceptable." He received ratings of "5" for promotion appraisal
factors one through eight, and a rating of "4" for promotion appraisal
factor nine. The resulting sum of the numbers assigned to the nine
promotion appraisal factors was "44" out of "81" possible. Management
testified that complainant was told many times, verbally and in writing
that he needed to obtain a Class A CDL, and this issue surfaced well
before he filed his EEO complaint. The agency explained that complainant
received a "Does not Meet," in Element 1, and a lower score in the
appraisal factor because he was not in compliance with his job when
he failed to take the class. Specifically, the agency stated that
complainant did not meet Critical Element (Major Duty) One of his CPD
which required him to drive one or more types of heavy vehicles, e.g.,
platform trucks, van trucks, stake trucks, etc. The federal, state,
and agency regulations required civilians operating such vehicles on
public roads to possess a Class A CDL. Complainant did not possess such
a license at the time of his appraisal. Therefore, he could not perform
Major Duty One. The agency further stated that both complainant and E1
received promotion appraisal factor ratings in the mid-range, because
they both failed to obtain the license. Accordingly, they did not meet
all the requirements of their jobs.
Claim 4
Complainant alleged that he was reassigned, along with E1, to the
Documented Cargo Section because management was aware that he filed an EEO
complaint and needed to "equalize the treatment between him and E1."
Management testified that complainant and E1 were reassigned to the
Documented Cargo Section because neither obtained their Class A CDL,
and they could perform primary duties in the Documented Cargo Section
without a Class A CDL. Moreover, the agency stated that complainant was
reassigned, i.e., no formal personnel action was needed for management
to require complainant to perform duties of his CPD in another area of
the Flight.
Finally, to the extent that complainant is alleging that he was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's
claim of hostile work environment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8,
1994). A finding of harassment is precluded based on our finding that
complainant failed to establish that any of the actions taken by the
agency were motivated by discriminatory animus. See Oakley v. United
States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
We note that complainant also alleged harassment by his coworkers when
they allegedly often teased him about being assigned to the shuttle all
the time. We find that complainant did not prove that he was subjected
to conduct that was sufficiently severe or pervasive to create a hostile
work environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998).
CONCLUSION
Therefore, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision because the preponderance
of the record evidence does not establish that discrimination occurred.
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
April 15, 2010
__________________
Date
1 Report of Investigation, Exhibit A, pages 6-8.
2 Report of investigation, Exhibit A, pages 4-5.
3 Report of investigation, Exhibit A, pages 2-3.
4 In order to be considered timely according to 29 C.F.R. � 1614.403(d),
the statement needed to be submitted within 30 days of when the Notice
of Appeal was filed, that is, on or before September 10, 2007.
5 The Master Sergeant, Vehicle Operations Supervisor was complainant's
acting first level supervisor from December 2004 to April 2005, and was
complainant's second level supervisor prior to December 2004 and after
April 2005.
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0120073620
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073620