0120110163
02-18-2011
Clarence S. Rucker, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Clarence S. Rucker,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120110163
Hearing No. 570-3008-00087X
Agency Nos. DOT-2007-21005-FAA-01 & DOT-2007-21234-FAA-01
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. For the reasons set forth,
we AFFIRM the Agency's decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was
employed as an Air Traffic Control Specialist at the Agency's Federal
Aviation Administration, Washington Air Route Control Center in Leesburg,
Virginia. Report of Investigation (ROI), at 1. Believing that he
was a victim of discrimination, Complainant sought EEO counseling and
subsequently filed two formal complaints, which the Agency consolidated
for joint processing.
In the first complaint (Agency No. DOT-2007-21005-FAA-01), Complainant
alleges that he was subjected to discrimination on the bases of race
(mixed-race), color (black) and in reprisal for prior EEO activity when,
on November 24, 2006, Complainant was paged back from a break by his
supervisor.
In the second complaint (Agency No. DOT-2007-21234-FAA-01), Complainant
alleges that he was subjected to discrimination on the bases of race
(mixed-race), color (black) and in reprisal for prior EEO activity when,
on March 10, 2007, Complainant's request for sick leave was denied.
At the conclusion of the investigation, Complainant received a copy of
the investigative report. Additionally, the Agency informed Complainant
of his right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision from the Agency.
Complainant requested a hearing before an AJ.
On June 10, 2010, an AJ issued a decision without a hearing finding that
there was no genuine issue of material fact in dispute, and concluded that
Complainant had not been discriminated against as alleged. Specifically,
the AJ found the Agency presented legitimate, nondiscriminatory reasons
for its actions, which Complainant failed to rebut.
On September 3, 2010, the Agency, fully implementing the AJ's decision,
issued a decision finding no discrimination. Complainant appealed from
that decision.
ANALYSIS AND FINDINGS
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. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review, we find the issuance of summary judgment was appropriate as
there are no genuine issues of material fact. Regarding claim 1, the
Front Line Manager of the Air Traffic Control Specialists stated that
she paged Complainant back from his break to fulfill the requirement to
have an associate "D-side" controller on position in addition to the
radar controller when holding procedures went into effect. The Front
Line Manager articulated that she did not know that Complainant was
suffering from an upset stomach when she made the assignment. The Front
Line Manager said that Complainant objected to be assigned to the D-side
position when he would rather work the radar position ("R-side"), and
only later expressed an urgent need to go to the bathroom after the
context of joking about "D-side diarrhea" had arisen. The Front Line
Manager stated that she overhead Complainant telling another controller
in the area that he must have had some bad chili for lunch. In response
to Complainant's persistence, the Front Line Manager asserted that she
paged another controller from break to relieve Complainant since the
"D-side" controller position could not be left unoccupied. Still not
believing the sincerity of Complainant's request, the Front Line Manager
claimed that she told Complainant to bring his chili bowl and a witness
when he returned. The Front Line Manager claimed that she apologized
to Complainant for the incident. ROI, at Exhibit F3.
With respect to claim 2, the First Level Manager stated that she asked
Complainant several times whether he had enough sick leave to cover
his request and Complainant did not answer her question. The First
Level Manager said that she could not approve Complainant's sick leave.
The First Level Manager informed Complainant that, if he had an adequate
sick leave balance, it would be up to Complainant's supervisor to
approve the sick leave, otherwise Complainant would be charged Absent
Without Leave (AWOL). The First Level Supervisor stated that she
advised Complainant that it was his responsibility to know his leave
balances, and that he could not request leave that he does not have.
The First Level Supervisor informed Complainant that the First Level
Manager could not approve leave that Complainant does not have, which
was why the First Level Manager asked Complainant if he had enough sick
leave to cover his request. The First Level Supervisor asserted that
Complainant was required to answer the First Level Manager's question.
ROI, at Exhibit F2.
As to the claim of harassment, the AJ found that Complainant had not shown
that the incidents he complained of in his complaint were sufficiently
severe or pervasive to alter the conditions of Complainant's employment.
Furthermore, the AJ found that Complainant failed to show that any
of the harassing incidents were motivated by race, color or reprisal.
AJ's Decision, at 6.
After a careful review of the record and contentions on appeal, the
Commission finds that Complainant failed to rebut the Agency's articulated
legitimate, nondiscriminatory reasons for its actions. Additionally, the
Commission finds that Complainant has failed to show by a preponderance
of the evidence that he was subjected to discrimination on the bases of
race, color or reprisal. Moreover, Complainant has failed to show that
the alleged harassing incidents, when considered together, constitute
a hostile work environment.
CONCLUSION
The Agency's decision finding no discrimination is AFFIRMED.
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 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 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
February 18, 2011
__________________
Date
2
0120110163
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013