0120140357
07-08-2016
Chris A.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chris A.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120140357
Hearing No. 510-2012-00396X
Agency No. 5R1S11005
DECISION
On October 30, 2013, Complainant filed an appeal from the Agency's September 27, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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.
ISSUE PRESENTED
The issue presented is whether substantial evidence in the record supports the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision, after a hearing, that Complainant did not establish that the Agency subjected him to disparate treatment on the basis of race (African-American), sex (male), age (56), or reprisal for prior protected EEO activity (EEO Counselor contact on September 20, 2010) when it terminated his employment during his probationary period, placed him on the base barment list, and issued a "be on the look-out" (BOLO) bulletin for him.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer,
GS-0083-06, at the Agency's Cape Canaveral Air Force Station (CCAFS), 45th Security Forces Squadron, Range Security Flight in Florida. Complainant began working for the Agency on October 1, 2009 and was subject to a one-year probationary period. Complainant's supervisory chain of command included the Assistant Flight Sergeant (S1 - African-American, male, 46), the Flight Sergeant (S2 - Caucasian, male, 49), the Operations Officer (S3 - Caucasian, male, 26), and the Squadron Commander (S5 - Caucasian, male, 42). Before working for the Agency, Complainant had worked for more than 30 years at CCAFS in the same role but as a contractor.
On September 15, 2010, S2 emailed S3 asking for guidance about Complainant's conduct. Specifically, S2 stated that several of Complainant's coworkers had verbally complained to him about Complainant's attitude, hygiene, mood swings, speeding on patrol, and other actions towards them. In addition, S2 stated that Complainant's coworkers "are concerned that he is a time bomb waiting to go off on them," "they feel it is a matter of time before he decides to go postal on them here at work," and "they no longer feel safe with him arming up with his mood swings."
On September 17, 2010, S3 informed S2 that he had discussed the situation with Human Resources and was requesting Complainant's termination. Specifically, S3 stated that he had heard similar concerns about Complainant and that "people on flight truly feel like something is going to happen to them, i.e., he's going to do harm to them."
On September 19, 2010, S2 issued Complainant a notice of termination during his probationary period. Specifically, S2 cited the following instances of misconduct by Complainant:
a. Unacceptable conduct
i. On September 14, 2010, when driving a police vehicle during a non-emergency, Complainant was speeding 70 miles per hour while in a 50 miles per hour zone. When a coworker in the vehicle asked him to slow down, he refused to do so and instead stared at the coworker in an angry manner, turned up the radio volume so it was extremely loud, and switched the air conditioning to a high heat even though the outside temperature was over 85 degrees.
ii. On September 15, 2010, when at the clearing barrel,2 Complainant had his gun in his hand, stood very close to a coworker's face, and yelled, "I do not enter the zone when people are talking and if you don't like it, you can report it to the Flight Sergeant."
b. Discourteous conduct
i. On September 8, 2010, when in the process of providing information for new uniforms, Complainant yelled in a loud and aggressive manner to a coworker, "There were some people trying to fit uniforms over here!"
ii. On September 8, 2010, when a coworker asked if anyone could help him move heavy furniture, Complainant responded by yelling, "Stop kissing ass!" When the coworker questioned him about the comment, he sat there and ignored the coworker.
iii. On September 14, 2010, Complainant was responsible for picking up two coworkers at a post before reporting back to the operations building. When he approached the post, one of the coworkers said that they were still waiting to be relieved from the post. Without any further questioning, Complainant drove off without the coworkers and proceeded to the operations building. Someone else had to go pick up the two coworkers.
From September 15-23, 2010, six of Complainant's coworkers submitted written statements to management about his conduct. In the written statements, Complainant's coworkers described the instances listed in the notice of termination.
On September 24, 2010, after reviewing his request for reconsideration and the documentation used to support his termination, S3 issued Complainant a final decision terminating him during his probationary period, effective close of business that day. S3 stated that the notice of termination listed an incorrect date for the speeding instance and that the correct date was August 24, 2010.
According to Complainant, after his termination, management placed him on the base barment list which denied him access to CCAFS. A BOLO bulletin for Complainant, dated September 30, 2010, was placed at the entrance of CCAFS. The BOLO bulletin stated that Complainant's name was found on an entry authorization letter for a production company filming a movie at CCAFS, Complainant may attempt entry from September 30, 2010 to October 3, 2010, Complainant should not be allowed entry, Complainant "may be armed and dangerous and is considered a security threat." The BOLO bulletin was later taken down.
EEO Complaint
Complainant filed an EEO complaint alleging that the Agency subjected him to disparate treatment on the bases of race (African-American), sex (male), age (56), and reprisal for prior protected EEO activity (EEO Counselor contact on September 20, 2010) when:
1. On September 24, 2010, management terminated his employment during his probationary period;
2. On September 24, 2010, management placed him on the base barment list; and
3. On September 30, 2010, management issued a BOLO bulletin about him.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. The AJ held a video-conferenced hearing on August 13, 2013.3
On September 3, 2013, the AJ issued a decision concluding that Complainant did not establish that the Agency subjected him to disparate treatment on the basis of race, sex, age, or reprisal for prior protected EEO activity. The AJ stated that she was finding no discrimination "[a]fter careful evaluation of all the evidence of record and listening to the testimony presented in this case."
Regarding claim 1, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, Complainant was terminated for conduct issues which arose primarily as a result of verbal and written complaints lodged against him by several of his coworkers. Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was pretextual. Specifically, the AJ noted that Complainant's coworkers described his conduct in written statements submitted in September 2010 and in affidavits obtained during the EEO investigation. Although Complainant denied that the incidents occurred or maintained that they occurred differently than described by his coworkers, the AJ found that he did not show that his race, sex, age, or prior EEO activity was a factor in any way. Although Complainant argued that management's testimony was not credible because they were inconsistent about who initiated or concurred with the termination, the AJ stated:
I find that any inconsistency regarding the initiation of the removal action to be of minor significance. The evidence reflects that the witnesses had not refreshed their memory by looking at statements or e-mails in the ROI which were over two years old. Moreover, any inconsistency on this matter does not discredit their consistent testimony regarding the substance of the termination.
Regarding claim 2, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, Complainant was not placed on any base barment list. Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was pretextual. Specifically, the AJ found that Complainant did not show that he was on a written list or that his race, sex, age, or prior EEO activity was a factor in any way.
Regarding claim 3, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, Complainant's coworkers may have created and posted the BOLO bulletin, but management removed the BOLO bulletin after becoming aware of it. Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was a pretext for race, sex, age, or reprisal discrimination. Specifically, the AJ found that Complainant could not identify who was responsible for the notice and did not show that his race, sex, age, or prior EEO activity was a factor in any way.
The Agency subsequently issued a final order fully implementing the AJ's decision. Complainant then filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in finding that he did not prove pretext.
Regarding claim 1, Complainant argues that he did not engage in the alleged misconduct. Specifically, Complainant cites his affidavit and hearing testimony in which he provided a contrary version of what happened. In addition, Complainant asserts that he had worked for more than 30 years at CCAFS (in the same role with many of the same coworkers and supervisors) without being disciplined and had received a satisfactory performance evaluation on September 5, 2010. In addition, Complainant asserts that management rushed through the termination process by not giving him the opportunity to respond to his coworkers' allegations before issuing him the notice of termination, not investigating further even after he denied the allegations, and not using progressive discipline. Further, Complainant asserts that the contradictory management testimony about who made the termination decision ("all the finger pointing back and forth") was itself evidence of pretext.
Regarding claim 2, Complainant argues that management unofficially barred him from the base, even if it did not officially place him on the base barment list. Specifically, Complainant cites affidavit and hearing testimony from S2 that he was barred from the base, affidavit testimony from three of his coworkers that management told employees that he was barred from the base, and hearing testimony from a friend who was with him when he was denied access to the base.
Regarding claim 3, Complainant argues that management created and posted the BOLO bulletin. Specifically, Complainant cites hearing testimony from S2 that the BOLO bulletin was already posted by the time S2 entered the base on September 19, 2010 to serve him the termination notice. Complainant reasons that only management would have been aware of the termination notice at that point.
ANALYSIS AND FINDINGS
Standard of Review
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. Nat'l Labor Relations Bd, 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, at 9-17 (Aug. 5, 2015). On appeal to the Commission, the burden is squarely on the party challenging the AJ's decision to demonstrate that the AJ's factual determinations are not supported by substantial evidence. See id. at 9-18. In this case, this means that Complainant has the burden of pointing out where and why the AJ's findings are not supported by substantial evidence. Cf. id. (pointing out that "[t]he appeals statements of the parties, both supporting and opposing the [AJ's] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ's] factual determinations are supported by substantial evidence").
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
The credibility of the Agency's explanation is key and must be judged in light of all the evidence obtained during the investigation. EEOC Compliance Manual Section 15, "Race and Color Discrimination," No. 915.003, at 15-V.A.2 (Apr. 19, 2006). If an agency's explanation for the complainant's treatment ultimately is not credible, that is powerful evidence that discrimination is the most likely explanation. Id. Of course, even if the agency's explanation lacks credibility, discrimination will not be found if the evidence affirmatively demonstrates that the agency's real motivation was not a protected EEO trait, but something not covered by the laws enforced by the EEOC. Id. Also, an agency's business decision cannot be found discriminatory simply because it appears that the agency acted unwisely, or that the agency's decision was in error or a misjudgment. Id. At the same time, the reasonableness of the agency's explanation is an important part of the overall picture. Id.
Upon review, we find that substantial evidence in the record supports the AJ's finding that Complainant did not establish that the Agency subjected him to disparate treatment on the basis of race, sex, age, or prior protected EEO activity. Assuming, arguendo, that Complainant established a prima facie case on the alleged bases, we agree with the AJ that he did not prove, by a preponderance of the evidence, that the Agency's reasons for its actions were a pretext for race, sex, age, or reprisal discrimination.
Regarding claim 1, the record supports the AJ's finding that Complainant did not show that his race, sex, age, or prior EEO activity was a factor in any way. The record reflects that Complainant's coworkers described the alleged misconduct in written statements submitted to management in September 2010 and management relied on those written statements to terminate him. Although Complainant argues that he did not engage in the alleged misconduct, he did not show that management's decision to terminate his employment was discriminatory rather than simply erroneous. Although Complainant argues that he had worked for more than 30 years at CCAFS without being disciplined and had received a satisfactory performance evaluation on September 5, 2010, he did not show that his conduct during the time period relevant to the termination (four out of the five instances of alleged misconduct occurred from September 8-15, 2010) was not unacceptable or discourteous. According to Complainant, he had worked with many of the same coworkers and supervisors at CCAFS for more than 30 years without any issue. If true, that tends to show that those same individuals did not hold any discriminatory animus against Complainant because of his race, sex, or age.
As to retaliatory animus, we note that management issued Complainant a notice of termination on September 19, 2010, the day before he contacted an EEO Counselor. Although Complainant argues that management rushed through the termination process, the record tends to show that management acted quickly because of concerns expressed by his coworkers about his conduct ("they are concerned that he is a time bomb waiting to go off on them," "they feel it is a matter of time before he decides to go postal on them here at work," "they no longer feel safe with him arming up with his mood swings," "people on flight truly feel like something is going to happen to them, i.e., he's going to do harm to them"). Although Complainant argues that management's testimony was not credible because there was inconsistent testimony about who initiated or concurred with the termination, we note that the AJ already addressed this in her decision (inconsistency was of "minor significance" and "does not discredit their consistent testimony regarding the substance of the termination").
Regarding claims 2 and 3, the record supports the AJ's finding that Complainant did not show that his race, sex, age, or prior EEO activity was a factor in any way. Even if management unofficially barred Complainant from the base and posted the BOLO bulletin, the record tends to show that it did so because of concerns about Complainant's conduct and not because of a protected EEO trait.
CONCLUSION
Substantial evidence in the record supports the AJ's decision, after a hearing, that Complainant did not establish that the Agency subjected him to disparate treatment on the basis of race (African-American), sex (male), age (56), or reprisal for prior protected EEO activity (EEO Counselor contact on September 20, 2010) when it terminated his employment during his probationary period, placed him on the base barment list, and issued a BOLO bulletin about him. Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order finding no race, sex, age, or reprisal discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___7/8/16_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The clearing barrel was a weapons handling area where police officers cleared and unloaded their weapons at the end of their shift.
3 In Allen v. U.S. Postal Serv., EEOC Appeal No. 01A51259 (Aug. 21, 2006), the Commission approved video-conferencing as an acceptable alternative to an in-person hearing. The record does not show that, either during the hearing or thereafter, the parties raised any objection to the video-conferencing.
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