0120121993
09-18-2012
William Eure, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
William Eure,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120121993
Hearing No. 430-2010-00341X
Agency No. 09-42158-03263
DECISION
Complainant filed a timely appeal from the Agency's final order, dated March 29, 2012, 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). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Ship Fitter at the Agency's Structural Shop, Production Resources Department, Norfolk Naval Shipyard facility in Portsmouth, Virginia.
On December 9, 2009, Complainant filed an EEO complaint 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:
1. On August 27, 2009, S1 reassigned Complainant from the Norfolk Naval station Fleet Maintenance Submarine (FMB) to his former duty station at the Norfolk Naval Shipyard;
2. From July 14 to August 27, 2009, S1 conducted himself in an unprofessional manger and subjected Complainant to abusive language, including referring to Complainant with a racial slur;
3. On August 19, 2009, Complainant became aware that S1 charged him with three hours of annual leave and two hours of Leave-Without-Pay (LWOP) and did not compensate him for 27 hours of overtime; and
4. On August 8, 2009, S1 cancelled Complainant's scheduled weekend overtime.
Complainant performed outstanding work and had been recommended for a promotion to work leader in 2007 and in early 2009. Around May 2009, the Agency assigned Complainant a new supervisor (S1). S1 supervised C and a Sheet Metal Mechanic (co-worker), who was African-American. S1 is Caucasian.
When Complainant learned that S1 had been assigned to supervise him, Complainant requested to be reassigned. Complainant worked with S1 a few years earlier at another location and Complainant did not have a good relationship. At that time, S1 was a work leader, but not Complainant's supervisor. S1 sometimes spoke to Complainant in a condescending manner and scrutinized Complaint while he was working.
On June 3, 2009, Complainant and the co-worker sought the assistance of the Zone Manager (S2). They told the Zone Manager (S2) that they had concerns about S1's management style and that S1 would not listen to Complainant's suggestions. Complainant did not tell S2 that he believe that S1 was discriminating against him because of race.
To address the concerns, the Zone Manager (S2) called a meeting with S1, Complainant and the co-worker. During the meeting, Complainant did not mention race, but the topic of race came up; and S1 acknowledged that he used to have prejudices against African-Americans, but that he had moved beyond his past prejudices. Complainant agreed to work with him, but Complainant also starting writing down each incident that occurred between S1 and himself.
The record shows that some of the friction was due to Complainant's belief that he should have been in S1's supervisory position.
On August 14, 2009, Complainant was due to be at work at 6:20 AM. Complainant was 40 minutes late arriving to work. Complainant had telephoned S1 at 6:45 AM and he told S1 that he would be late because he was tied up in traffic. When Complainant arrived, S1 asked him what leave he wanted to take (annual or sick).
A confrontation ensured. Both parties were yelling. Complainant extended an apology to S1, but S1 said that he did not want to supervise Complainant.
On August 15, 2009, Complainant was assigned to a different supervisor and no longer reported to S1.
On August 19, 2009, Complainant noticed that he was missing 27 hours of overtime. He told S1. The record shows that Complainant was subsequently paid for the 27 hours of overtime and the three hours annual leave. Complainant was also compensated for the hours cancelled overtime and LWOP.
On August 27, S3, who was then S1's supervisor, began a pre-action against Complainant. He charged Complainant with disrespectful conduct to a supervisor.
S3 decided to transfer Complainant. The Agency practice was to separate employees when there were issues with confrontation. Complainant did not lose pay or rank.
On August 29, 2009, Complainant contacted the EEO Counselor.
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. On May 16, 2011, The Agency moved for summary judgment. The AJ granted summary judgment on claims three and four with respect to the leave and compensation claims. The AJ found that the record was undisputed and found that the evidence did not show discrimination.
The AJ held a hearing, on January 31, 2012, on the first two issues.
During the hearing, the AJ considered Complainant's testimony that he believed that S1 was biased against Complainant because of the way that S1 spoke to Complainant and treated him like a child. Complainant testified that S1 wanted to "control everything". The AJ found that Complainant found S1's manner to be disrespectful to Complainant, who believed that he was more qualified to be a supervisor than S1.
The AJ also considered the testimony of both S1 and S2 and found that the evidence showed that S1 and Complainant had particular difficulty getting along. The AJ concluded that the record shows that "the nature of the problem between [S1] and Complainant was not about race, but about power and personality." The AJ concluded that Complainant had not made any threats against S1, as S1 claimed.
The Zoning Manager (S2) testified that he did not believe that S1 was motivated by racial animus. Similarly, the African-American co-worker testified that S1 "treats me all right." The record shows that S1 did not have a problem with anyone but Complainant.
The AJ further found that S1 did not call Complainant by the alleged racial slur. The AJ found "Complainant's testimony regarding the racial epithet to be unconvincing".
With regard to the allegation of reprisal, the AJ found that Complainant first engaged in EEO activity when he contacted the EEO office on August 29, 2009, which was after the incidents he alleged were retaliatory. The AJ found that Complainant had not engaged in EEO activity prior to that time. The AJ also reasoned that Complainant did not show that he was subjected to an adverse action after August 29, 2009, when he first made his initial EEO contact.
The AJ found that Complainant had not shown by a preponderance of the evidence that the actions were based on his race or sufficiently severe or pervasive to alter the terms and conditions of employment to create a hostile work environment.
The AJ issued a decision on February 21, 2012. 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
Complainant argues that the AJ's finding that S1 spoke to Complainant in a condescending voice and "scrutinized Complainant while he was working" is evidence of a hostile work environment. Complainant disagrees with the AJ's conclusion that S1's manner of speaking to Complainant as if Complainant was a child was not sufficient. Complainant asserts that the evidence that S1 made false threats against Complainant buttresses Complainant's claim of a hostile work environment.
In response, the Agency maintains the final order should be affirmed because Complainant's left unchallenged the AJ's factual determination that the alleged conduct was not based on race or reprisal and because the AJ's determination was supported by substantial evidence. The Agency maintains that Caswell is not disposition because it is a procedural case and does not apply to a post hearing appeal.
ANALYSIS
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.
In this case, however, the AJ issued a decision without a full hearing after determining that two of the issues did not warrant a hearing.
Consequently, we must first determine whether it was appropriate for the AJ to issue a decision without a full hearing or to grant judgment to the Agency based on this record on those issues. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. See 29 C.F.R. � 1614.109(g). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but to determine whether there are genuine issues for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). At the summary judgment stage, the evidence of the non-moving party must be believed and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. In addition, the record must be adequate and properly developed.
Upon review, the Commission finds that the AJ properly granted summary judgment to the Agency on the claims three and four, which pertained to a denial of leave and cancellation of scheduled overtime.
First, we find that the record is adequately developed for a final determination. Specifically, we find that the evidentiary record includes documentation of the compensation and leave actions that were issued by the Agency. The record shows that the Agency made the adjustments that Complainant was seeking.
Next, to prove disparate treatment, Complainant must present 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. Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Complainant may establish reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful in articulating legitimate reasons, the burden shifts back to Complaint to demonstrate by a preponderance of the evidence that the Agency's reasons for its actions were a pretext for discrimination or reprisal. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). ; U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983).
For purposes of our analysis under the summary judgment principles, we will assume that Complainant established the elements of his prima facie case. The prima facie inquiry may be bypassed in this case, however, since we find that the Agency provided a specific, clear and individualized explanation for the treatment accorded Complainant. Complainant was no longer under the supervisor of S1 when Complainant requested that S1 adjust his leave record. The record shows that Complainant received the overtime and leave to which he was entitled.
Turning to the AJ decision following a hearing on the first two claims, the hearing provided Complainant with the opportunity to demonstrate that the Agency's articulated reasons were a pretext for discrimination, but Complainant did not introduce evidence to dispute the Agency's reasons. In this instant case, it is undisputed that Complainant and S1 did not enjoy a good working relationship and that there had been friction between the two. The AJ considered the fact that S1 had issues with Complainant, but not the other African-American employee. The AJ considered Complainant's credibility in finding that S1 did not utter the racial epithet that Complainant alleged that he had. The AJ concluded that the issues between Complainant and S1 were not race-related, but stemmed from a power struggle and a personality clash.
Further, because the AJ did conduct a hearing, she had the opportunity to consider Complainant's credibility. 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).
After a careful review of the record and mindful that a hearing was conducted, we discern no basis to disturb the AJ's ultimate conclusion. For these reasons, we conclude that the record supports that AJ's ultimate finding of no discrimination.
CONCLUSION
Accordingly, 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 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
September 18, 2012
__________________
Date
2
0120121993
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121993