01A14985
12-03-2002
Christopher C. Bennett, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Christopher C. Bennett v. Department of Transportation (Federal Aviation
Administration)
01A14985
December 3, 2002
.
Christopher C. Bennett,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01A14985
Agency No. 5-00-5008
Hearing No. 330-A0-8161x
DECISION
We, the United States Equal Employment Opportunity Commission (�EEOC�
or �Commission�), are tasked here with deciding whether the Department
of Transportation (Federal Aviation Administration) (�the agency�)
has violated Title VII of the Civil Rights Act of 1964 (�Title VII�),
as amended, 42 U.S.C. � 2000e et seq. More specifically, we must
adjudicate an appeal brought by agency employee Christopher C. Bennett
(�complainant�), who claims he was subject to illegal sexual harassment
and reprisal at the hands of the agency. After hearing witness testimony
and reviewing all other record evidence, an EEOC administrative judge
(and subsequently, the agency) concluded that no Title VII infractions
occurred in this case. For reasons detailed below, we agree.
At all relevant times, complainant worked for the agency as an Air
Traffic Controller at William P. Hobby Airport in Houston, Texas.
Complainant alleged that during 1999, one of the male supervisors at
this facility repeatedly touched complainant in a sexual manner on
complainant's back, shoulders, legs, and buttocks. Complainant also
claimed that this supervisor made lewd gestures (such as grabbing
supervisor's crotch in front of complainant) and sexually explicit
comments (such as telling complainant to �blow me� or �blow this,� and
informing complainant that complainant made the supervisor �horny�).
Complainant asserted that complainant repeatedly told the supervisor
not to touch him, but that this conduct occurred off and on for a
period of about six months. Consequently, on or around October 28,
1999, complainant filed a formal equal employment opportunity (�EEO�)
complaint, claiming that the supervisor's actions constituted illegal
sex-based harassment, and that the agency should be held liable for this
supervisory conduct. The agency agreed to investigate these allegations.
According to complainant, after he complained about the supervisor's
behavior and filed his formal complaint, his work environment became
increasingly hostile. Complainant stated that agency supervisors
began to treat him differently (e.g., by denying him credit time
for work performed on complainant's EEO matters, withholding various
work opportunities normally provided to all Hobby Airport Air Traffic
Controllers, and reprimanding complainant for performing various tasks for
which other Hobby Airport Air Traffic Controllers were not reprimanded).
Complainant also suggested that others in the work place began to ignore
and ostracize him in various ways. Consequently, the agency subsequently
agreed to also investigate whether the agency had retaliated against
complainant for engaging in protected EEO activity (i.e., complaining
about purported sexual harassment).
The agency completed its investigation of this assertion and of the
underlying harassment claim, and issued a report of investigation
to complainant. Complainant then opted to request a hearing on these
matters before an EEOC administrative judge. An administrative judge
(�the AJ�) was appointed for this purpose, and a hearing was convened
on complainant's claims on April 26, 2001. Complainant, the allegedly
harassing supervisor, complainant's direct level supervisor, and other
agency personnel testified at this hearing. Later, on or around June 25,
2001, the AJ issued a decision finding that complainant had not proven
that any illegal sex-based harassment or reprisal violating Title VII
had occurred. The AJ concluded, after crediting the live testimony of
complainant's co-workers, that if the supervisor in question had indeed
touched complainant in an unwelcome manner, this touching had not at
all been sexual in nature (and merely resulted from the typical, and
unavoidable, interpersonal contact common in the cramped air traffic
control tower environment). The AJ also reasoned that, even assuming
supervisor treated complainant exactly as complainant alleged, such
conduct was not severe enough to rise to the level of unlawful harassment
(since the conduct occurred sporadically over a six month period).
Further, the AJ found, complainant had not shown that any other adverse
action had been inflicted on him in reprisal for engaging in protected
EEO activity.
The agency issued a final agency order (�FAO�) on or around July 9, 2001,
notifying complainant of the agency's intention to fully implement the
AJ's decision. After receiving this FAO, complainant filed a timely
notice with this Commission challenging the FAO and the AJ's finding of
no discrimination. We accepted complainant's notice and docketed it as
this appeal. We are now issuing this written decision on this matter
pursuant to 29 C.F.R. � 1614.405(a).
We are charged here with reviewing any legal conclusions reached by
the AJ de novo (or �anew�). See id. By contrast, we must uphold any
post-hearing factual findings by the AJ so long as they are supported by
substantial evidence from the record. Id.; see also Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9,
1999) (�EEO MD-110�), at 9-16. 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].<1> Any finding on whether or
not discriminatory intent existed �will be treated as a factual finding
subject to the substantial evidence review standard.� EEO MD-110,
at 9-16; see also Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
Thus, on appeal to this 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.� EEO MD-110,
at 9-17. In this case, this means that complainant has the burden of
pointing out to us 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�). In our view, complainant has not done so.
Complainant is, at least in part, raising claims of sex-based harassment.
Title VII provides that �it shall be an unlawful employment practice for
an employer . . . to discriminate against an individual with respect
to his compensation, terms, conditions, or privileges of employment,
because of such individual's . . . sex . . .� 42 U.S.C. � 2000e-2(a)(1).
If a male employee is subjected to unwelcome sexual conduct or comments
by another male employee, such �same sex� conduct or comments can,
in certain circumstances, become harassment �because of sex� and hence
violate Title VII. See, e.g., Karlovich v. Department of Transportation,
EEOC Appeal No. 01974930 (Nov. 1, 1999) (citing Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75 (1998)).
However in this �same sex� context (as well as in �opposite sex�
situations):
the anti-discrimination statutes are not a �general civility code.�
Thus, federal law does not prohibit simple teasing, offhand comments,
or isolated incidents that are not �extremely serious.� Rather, the
conduct must be �so objectively offensive as to alter the �conditions'
of the victim's employment.� The conditions of employment are altered
only if the harassment culminated in a tangible employment action or
was sufficiently severe or pervasive to create a hostile work environment.
EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999) (web
version) (�Vicarious Liability Enforcement Guidance�), at 4 [internal
notes and citations omitted].
Complainant has essentially asserted that an agency supervisor's actions
did create a �hostile work environment.� This, though, is a case of
�he said,� �he said.� That is, complainant recounts events one way,
and his purported harasser recounts them a distinctly different way.
Complainant claims the supervisor subjected him to inappropriate sexual
banter and overtures. The supervisor vehemently denies that any such
sexual commenting, gesturing, or touching ever happened. In cases such
as these, where the credibility of the relative parties is critical,
we must rely heavily upon the factual findings of the AJ. See EEO
MD-110, at 9-16 (explaining that any �credibility determination of an
[a]dministrative [j]udge based on the demeanor or tone of voice of a
witness will be accepted unless documents or other objective evidence so
contradicts the testimony of the witness or the testimony of the witness
otherwise so lacks in credibility that a reasonable fact finder would
not credit it�). Here, the AJ made the factual determination that the
supervisor's version of events was more believable than complainant's
unsubstantiated assertions. After our own independent review of the
record, we cannot conclude that �no reasonable fact finder� would have
reached the same conclusion. Therefore, we are bound to uphold the
AJ's factual findings as to what really transpired in this case (i.e.,
that the agency's supervisor did not behave towards complainant the
way complainant claims he did). Consequently, and after considering
the law governing this case, we are also bound to uphold the AJ's legal
determination that no illegal sex-based harassment was committed here.
Similarly, we must affirm the AJ's ruling on complainant's retaliation
allegation, too. With �reprisal� claims of this kind, where there
is no direct evidence of any illegal motive for the agency actions in
question, an evidentiary �burden of production� is placed initially on the
complainant to put forth a prima facie case of unlawful discrimination.
The complainant may do so by presenting facts which, if unexplained,
reasonably give rise to an inference of discrimination (i.e., that a
prohibited consideration was a factor in the relevant adverse employment
actions). If complainant successfully establishes such a prima facie
case, the evidentiary burden of production then shifts to the agency to
articulate legitimate, non-discriminatory reasons for its ostensibly
objectionable conduct. If and when the agency offers such a lawful
explanation, the evidentiary burden of production shifts (one last time)
back to the complainant to show that the explanation offered is but
a pretext for the agency's true, prohibited discriminatory intent.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978); Board of Trustees of
Keene State College v. Sweeney, 439 U.S. 24 (1978); Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981); United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711 (1983); St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993); and Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000).
Notwithstanding these shifting burdens of production, however, in any
Title VII claim of retaliatory disparate treatment, the complainant at
all times carries the ultimate burden of persuading the finder of fact
� by a preponderance of (albeit circumstantial) evidence � that he or
she was a victim of intentional discrimination. See, e.g., Sweeney,
439 U.S. at 29 (Stevens, J., dissenting); Burdine, 450 U.S. at 256;
Aikens, 460 U.S. at 716; St. Mary's Honor Center, 509 U.S. at 507, 511,
518; and Reeves, 530 U.S. at 143. Complainant has not met this burden
here with respect to his retaliation allegation. Even if we assume for
argument's sake that he satisfied his initial obligation to put forth
a prima facie case of reprisal-related disparate treatment (e.g., the
AJ conceded that he did), the agency responded accordingly. That is,
the agency provided various legitimate, non-discriminatory reasons for
taking each of the various allegedly adverse actions against complainant
(such as denying complainant credit time for working on his EEO matters,
withholding various work opportunities normally provided to all Hobby
Airport Air Traffic Controllers, and reprimanding complainant for
performing various tasks for which other Hobby Airport Air Traffic
Controllers were not reprimanded). In our view, complainant failed
to prove that the agency's facially legitimate, non-discriminatory
explanations for his post-complaint treatment were a pretext for a
prohibited retaliatory motive.
In short, the preponderance of the evidence simply does not support the
notion that complainant was harassed because he is a man, or retaliated
against because he complained about the alleged harassment. We therefore
see no reason to disturb the AJ's factual or legal conclusions � or the
FAO implementing them. These rulings are affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal
Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036.
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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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 (S0900)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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.; and 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 does not extend complainant's 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 entitled �Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 3, 2002
__________________
Date
1The United States Supreme Court has explained
that �substantial evidence� is �more than a mere scintilla . . . .
It �must do more than create a suspicion of the existence of the fact
to be established. [I]t must be enough to justify, if the trial were
to a jury, a refusal to direct a verdict when the conclusion sought to
be drawn from it is one of fact for the jury . . . .'� Universal Camera
Corp., 340 U.S. at 477 [citations omitted].