0120110178
07-08-2014
Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120110178
Hearing No. 410-2009-00333X
Agency No. 2008-22181-FAA03
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 24, 2010, 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. For the following reasons, the Agency's final order which fully implemented the EEOC Administrative Judge's (AJ) finding of no discrimination is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Atlanta Air Traffic Controller, Atlanta Tower, Atlanta, Georgia. On September 11, 2008, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity when starting in January 2001, the District Manager of Atlanta ARTCC cultivated and fostered an environment in which Complainant was treated differently than his coworkers and this treatment culminated on July 14, 2008, when he was suspended for a total of seven (7) days over two (2) separate time periods; July 14 through July 17, 2008 and August 12 through August 14, 2008, for inappropriate behavior in a meeting with a supervisor and for use of inappropriate language and remarks to a coworker. Complainant maintains that the Agency's response to these actions have resulted in the creation of a hostile work environment.
Following an investigation conducted by the Agency, Complainant requested a hearing before an AJ. The AJ held a hearing on June 14, 2010, and issued a bench decision which found that Complainant failed to demonstrate that he was discriminated against. Specifically, the AJ noted that the events that gave rise to the complaint transpired in March and April of 2008. On or about March 25, 2008, Complainant had a disagreement with his supervisor regarding the training of a controller-in-training. The controller-in-training was in the process of making a mistake and Complainant's supervisor (S) corrected the trainee. Complainant thought that he should have been the one to correct the trainee. They argued loudly and Complainant was thereafter called into the office of S. S maintains that during this meeting, Complainant got up and bowed down to S saying sarcastically, "You are the supervisor." Complainant denied that he did so.
On April 7, 2010, while the Agency was investigating the events of March 25th, Complainant was involved in another altercation. Complainant was alleged to have told a coworker that he thought he recognized him as a person standing by the "Edmond Pettus Bridge" in a special about Martin Luther King Jr. The coworker asserted that Complainant made a comment to the effect that he, the coworker, had a rock in his hand or that he was throwing rocks at black people. The coworker was a white male who was born and raised in Alabama. Complainant denied that he said that the white coworker was one of the people throwing rocks at black people. The coworker complained about this incident.
An investigation was initiated and it was determined that each of the allegations was credible. The Agency uses progressive discipline, and the severity of the discipline for Complainant's actions was impacted by the fact that he had recently been demoted from his supervisory position for disciplinary reasons. The Agency indicated that Complainant made no showing that it failed to issue discipline to other employees who were disrespectful or made racially inappropriate comments. The Agency explained that Complainant was given a seven-day suspension for being disrespectful to S and for making a racial remark to a coworker.
The AJ found that Complainant failed to establish that he was discriminated against with regard to the suspension. The AJ also indicated that Complainant made no showing that he was subjected to any act of discrimination as his demotion was subsequently found to have been non-discriminatory by the Merit Systems Protection Board and that finding was binding. The AJ found that there was nothing suspicious about the Agency discontinuing Complainant's role of training new controllers given the fact that his boss disapproved of the manner in which he performed this task and given the fact that he had made a racially offensive remark and was subjected to additional discipline following his demotion.
With respect to the hostile work environment claim, the AJ found that if one existed, it had come to an end more than forty-five days prior to the time that the Complainant initiated counseling with respect to this action, Because there had been no showing of discrimination with respect to any act that occurred within that forty-five day period, the AJ found the hostile work environment claim, with respect to prior acts, was untimely. The AJ also found that Complainant failed to prove his case and issued a finding of no discrimination as to all claims. The Agency in its final order fully implemented the finding of no discrimination.
ANALYSIS AND FINDINGS
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.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final Agency order. We find substantial evidence to support the AJ's ultimate finding that unlawful employment discrimination was not proven by a preponderance of the evidence. Even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was suspended because he was disrespectful to his supervisor and because he made a racially offensive comment to a coworker. Complainant failed to provide any evidence which demonstrated that the Agency's nondiscriminatory reasons for its actions were pretext for discrimination.
Further, we find that the AJ correctly found that Complainant was not subjected to a hostile work environment. With respect to Complainant's contentions on appeal, we find that other than his conclusory statements he has provided no evidence to support his claim that the District Manager orchestrated a conspiracy to get back at him for filing the complaint 17 years ago. Finally, we find that the AJ properly made credibility determinations based on the testimony and demeanor of the witnesses involved.
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
_7/8/14_________________
Date
2
0120110178
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110178