Complainant,v.Michael B. Donley, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Feb 27, 2013

0120114176 (E.E.O.C. Feb. 27, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120114176

Agency No. 9Q0R10008

DECISION

On August 31, 2011, Complainant filed an appeal from the Agency’s July 27, 2011 final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Aircraft Freight
Loader at the Agency’s Hickam Air Force Base in Hawaii. Pursuant to the Agency’s
Occupational Health and Safety Standard 4820, Occupational Noise and Hearing Conservation
Program, employees routinely exposed to noise exceeding 85 dBA in an eight hour shift are
required to undergo an annual hearing test. On November 16, 2009, a noise dosimetry survey
report determined that the noise levels in the flight line area exceeded the 85 dBA threshold,
and recommended that Aircraft Freight Loaders enroll or remain enrolled in the Hearing
Conservation Program.

Complainant has a mechanical right ear impairment that is adversely affected by the high level
of noise at his workplace. Complainant requested that he be removed from workspaces that
require double hearing protection because he is unable to wear double hearing protection while
wearing hearing aids. On March 13, 2010, the Agency removed Complainant from all
hazardous noise areas, including flight line areas, and he was assigned to perform dispatcher
duties. The dispatcher position was a temporary accommodation as the unit had no permanent
dispatcher position.

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Aircraft Freight Loaders and other employees enrolled in the Hearing Conservation Program
were informed that they were required to attend a hearing appointment on May 10, 2010.
Complainant declined to attend the hearing appointment, stating that he was finished with
audiograms and hearing appointments sponsored by the Agency. On May 16, 2010,
Complainant was again directed to attend a hearing appointment, but he refused. Complainant
was not disciplined for his refusals to attend the hearing tests. On June 8, 2010, after
conducting a Fitness and Risk Evaluation of Complainant, the Occupational Health Working
Group Chairperson recommended that all of Complainant’s duties requiring him to be on or
near the flight line or aircraft be eliminated to ensure his continued health and to prevent
further deterioration. The Chairperson found that all activities in the warehouse and dispatch
area should be fine. Consequently, Complainant was removed from the Hearing Conservation
Program and not required to undergo an annual exam.

On July 12, 2010, Complainant filed an EEO complaint wherein he claimed that the Agency
retaliated against him when, on May 16, 2010, his Supervisor verbally ordered him to attend
an annual hearing appointment. 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. When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to establish a prima facie case of reprisal.
The Agency stated that ordering Complainant to undergo a hearing examination was a
requirement of his Aircraft Freight Loader position and therefore did not constitute an adverse
action. The Agency also noted that Complainant had four instances of prior EEO activity, the
most recent being in July 2007, and that the near three-year period of time between that EEO
activity and the order to attend the hearing examination was too remote in time to establish a
causal connection. The Agency further determined that it articulated legitimate,
nondiscriminatory reasons for directing Complainant to undergo a hearing examination. The
Agency stated that Complainant was still officially assigned to the position of Aircraft Freight
Loader, and as was the case with all other employees in that position, was automatically
scheduled for a hearing test, consistent with the Hearing Conservation Program.

With regard to Complainant’s arguments to establish pretext, the Agency observed that
Complainant claimed he was no longer subject to the Hearing Conservation Program since he
was no longer working in a hazardous noise area. The Agency responded that Complainant’s
assignment as a dispatcher was not considered a permanent position, and at the time he was
ordered to undergo testing, it had not yet been determined that he could not continue to work
as an Aircraft Freight Loader.

ANALYSIS AND FINDINGS

We shall assume arguendo that Complainant established a prima facie case of reprisal. The
Agency explained that it ordered Complainant to undergo a hearing examination based on
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Complainant still being considered an Aircraft Freight Loader and because the hearing safety
requirements mandated that employees routinely exposed to noise exceeding 85 dBA be
covered under the Hearing Conservation Program. The Agency stated that Complainant had
been informed that his assignment to the dispatcher position was a temporary accommodation.
We find that the Agency articulated legitimate, nondiscriminatory reasons for its action.

With respect to Complainant’s arguments to establish pretext, we find that these contentions
are not sufficient to refute the Agency’s explanation. Complainant was still subject to the
requirements of an Aircraft Freight Loader even though he was temporarily assigned to the
dispatcher position. In addition, a decision had not yet been made as to whether Complainant
could be returned to the flight line or placed in another position. Complainant was not
removed from the Hearing Conservation Program until June 2010. We find that Complainant
has not established that the Agency’s stated reasons for requiring him to have the hearing test
were pretext intended to hide retaliatory intent. The Agency’s final decision 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
0120114176

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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 27, 2013
Date