Complainant,v.Ray H. LaHood, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Jun 14, 2013

0120114154 (E.E.O.C. Jun. 14, 2013)

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

,
Complainant,

v.

Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.

Appeal No. 0120114154

Hearing No. 450-2011-00115X

Agency No. 2010-23354-FAA-05

DECISION

On August 31, 2011, Complainant filed an appeal from the Agency’s August 22, 2011 final
order 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.1

For the following reasons, the Commission AFFIRMS the Agency’s final
order.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Safety and
Occupational Health Specialist/Safety Inspector at the Agency’s work facility in Fort Worth,
Texas. Complainant initiated contact with an EEO Counselor on May 15, 2010. On July 28,
2010, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated
against him on the basis of his race (African-American) when:

1. Complainant was suspended for five days, effective May 3-7, 2010, for failing to
follow instructions concerning a travel voucher.

1 The record reveals that the Agency failed to issue a final order within 40 days of the AJ’s
decision. Therefore, the AJ’s decision became the Agency’s final order pursuant to 29 C.F.R.
§ 1614.109(i).

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2. As of April 12, 2010, his Supervisor directed him to no longer write any safety
issues related to the designated smoking areas; Complainant believes that this
Supervisor was instructing him to do something that is unlawful, and that other
inspectors have not received these instructions.

3. On July 19, 2010, Complainant’s Supervisor denied his request for annual leave.

4. His Supervisor asked him to provide a copy of his jury summons when Complainant
was summoned for jury duty.

Complainant also claimed that he was discriminated against on the bases of his race and in
reprisal for his prior EEO activity when he was harassed as follows:

5. On July 19, 2010, Complainant’s Supervisor denied his request for annual leave.

6. On August 13, 2010, his Supervisor made negative comments about him, saying he
was a “problem child”.

7. On September 10, 2010, his Supervisor announced in a meeting that Complainant
was not meeting standards.

8. As of September 10, 2010, his Supervisor has subjected his work to heightened
scrutiny.

9. As of October 12, 2010, Complainant’s work assignments have changed.

Complainant had also claimed discrimination on the basis of race when: 1) On April 22, 2009,
his Supervisor initially denied his request of April 21, 2009, for sick leave, due to short notice
although the request was subsequently approved on April 24, 2009; and 2) In an e-mail sent
July 8, 2009, the Supervisor implied Complainant was AWOL. On October 14, 2010, the
Agency dismissed these claims pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds of
untimely EEO Counselor contact. The Agency determined that Complainant initiated EEO
contact concerning these claims on May 15, 2010, ten months after the expiration of the 45-
day limitation period. The Agency investigated the remaining claims.

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 (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s Motion for Summary Judgment
and issued a decision on July 13, 2011.

The AJ found that no discrimination occurred. With regard to claim (1), the Supervisor
informed Complainant and his coworkers that when a rental vehicle was required for official
travel, only an economy class car would be authorized, excepted under certain circumstances
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requiring prior approval. Upon completion of travel, Complainant submitted a voucher which
reflected the cost of a larger sized vehicle. The Supervisor returned the voucher to
Complainant and directed him to change it to reflect the cost of an economy sized car.
Complainant did not resubmit the voucher. Complainant continued to refuse to resubmit the
voucher despite being directed to do so by his Supervisor. Complainant was subsequently
suspended for five days for failure to follow instructions. The AJ noted that a Caucasian
employee was counseled for submitting her travel voucher late and a Black employee was not
issued any discipline after resubmitting a travel voucher to reflect reimbursement for an
economy sized car.

With respect to claim (2), the Supervisor told Complainant and other inspectors not to
document smoking rooms in the field as safety issues, but Complainant stated he would
continue to do so. The Supervisor informed Complainant that his safety write-ups of
designated smoking rooms at field locations were improper because they were not in
compliance with policy and procedure as the existence of a smoking room alone did not violate
an OSHA standard or regulation. In terms of claims (3 and 5), Complainant’s leave request of
eight hours was disapproved because Complainant was scheduled for temporary travel duty on
the date in question. The leave request was subsequently approved after Complainant
rescheduled his travel and resubmitted his request. The AJ observed that the Supervisor also
disapproved a Caucasian employee’s leave request due to a work assignment conflict.

With regard to claim (4), Complainant informed his Supervisor that he had been summoned for
jury duty. The Supervisor requested that Complainant provide a copy of the jury summons
pursuant to Agency policy. Complainant provided the requested documentation. As for claim
(6), Complainant stated that he was informed by a coworker that the Supervisor referred to
him and another inspector as a “problem child”. The AJ noted that the Supervisor stated he
did not recall making such a comment. In terms of claim (7), the AJ stated that the Supervisor
and the Lead Safety Inspector/Coordinator met with Complainant concerning his need to
improve in certain areas, including proper identification/categorization of risk levels and clarity
of his write-ups. The AJ noted that these officials met with several other inspectors.

With respect to claim (8), the Supervisor addressed Complainant’s claim that his work was
receiving heightened scrutiny by noting that this was because Complainant’s work was not
meeting minimum standards. The Supervisor asserted that the work of five other inspectors all
received the same degree of scrutiny in the initial quality reviews of their work products. With
respect to claim (9), one of Complainant’s changed work assignments occurred due to
management at the Fort Worth facility requesting that Complainant not conduct further
reviews. The AJ observed that other employees’ work assignments also were changed in order
to accommodate the organization’s request.

In terms of claims (1-4) of disparate treatment, the AJ found that Complainant was not treated
differently from his coworkers. The AJ cited the reasons articulated above. As to
Complainant’s claim of a hostile work environment as set forth in claims (5-9), the AJ noted
that the alleged incidents all address work performance issues except for the “problem child”
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comment. The AJ observed that the “problem child” remark was also made about a coworker
outside of Complainant’s protected group. The AJ found that there is no evidence linking the
alleged harassment to Complainant’s race. The AJ further found that many of the cited
incidents occurred prior to Complainant engaging in protected activity and prior to the
Supervisor becoming aware of that activity. Additionally, the AJ reasoned that the incidents
did not rise to the level of severity or pervasiveness to constitute a hostile work environment.
With respect to issues concerning Complainant’s work, the AJ stated that the Supervisor and
the Lead Safety Inspector had concerns as to the high number of significant findings that
Complainant made on matters that they did not believe were significant, and that his number of
significant findings far outpaced the number made by other safety inspectors for similar
matters. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for
its actions.

As for Complainant’s argument of pretext, the AJ noted that Complainant did not dispute what
he was accused of in terms of the suspension and the safety violations, but rather Complainant
claims that his Supervisor was wrong in requiring him to change his travel voucher and not to
write up smoking rooms as safety violations. The AJ reasoned that just because Complainant
did not agree with the instructions and Agency policies, that does not mean he was
discriminated against when those instructions were enforced. The AJ observed that the policies
as to annual leave and being asked to provide a copy of a jury summons were applied to others
in the same situations as Complainant. The AJ also did not find persuasive Complainant’s
position that he was subjected to harassment.

When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision,
the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R.
§ 1614.109(i).

CONTENTIONS ON APPEAL

On appeal, Complainant contends that without a hearing, he was unable to develop a full and
appropriate record. Complainant also claims that the Agency’s attorney violated the settlement
conference’s confidentiality rules. Additionally, Complainant argues that the AJ did not issue
a ruling on the portion of his complaint that was dismissed on procedural grounds.

In response, the Agency asserts that Complainant was not denied a full and fair opportunity to
respond. According to the Agency, it listed in its Motion for Summary Judgment material
facts that it asserted were not in dispute and Complainant responded to the Motion by listing
the material facts he believed were in dispute. In terms of Complainant’s claim that material
facts were in dispute, the Agency maintains that any disputed facts listed by Complainant in his
response were either immaterial to the complaint or unsupported by evidence. The Agency
asserts with regard to claim (1) that the policy is that an employee is responsible for any
unauthorized costs resulting from the use of a rental car. The Agency states that Complainant
does not dispute that he traveled alone when he rented a larger car. In terms of the comparison
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cited by Complainant, the Agency notes that the comparison’s rental of a larger car was
authorized because he shared the car with another inspector. As for the safety inspection
reports, the Agency asserts that the Supervisor directed five other inspectors to no longer write
safety issues regarding smoking areas.

As for the annual leave request, the Agency asserts that Complainant does not dispute that he
had a safety inspection scheduled for that week or that other employees acknowledge that an
inspector should not request leave for a time when a safety inspection is scheduled. The
Agency notes that the comparison cited by Complainant did not request leave under the same
circumstances. The Agency states that a White inspector claimed that he was subjected to the
same treatment by the Supervisor as Complainant. Further, the Agency argues that witnesses
indicated any conflicts between Complainant and the Supervisor were based upon their
personalities and not unlawful discrimination.

With regard to the claims that were dismissed on the grounds of untimely contact of an EEO
Counselor, the Agency asserts that the incidents at issue in these two claims occurred on April
22, 2009, and July 8, 2009, respectively. The Agency states that Complainant did not initiate
contact with an EEO Counselor until May 15, 2010, after the expiration of the 45-day
limitation period for contacting an EEO Counselor.

As for Complainant’s argument that Agency counsel violated the rules of the settlement
conference, the Agency asserts that Complainant did not identify the specific information in its
letter that was prohibited information. The Agency states that none of the information was
prohibited as it included only information necessary for the AJ’s processing of the case as the
AJ was entitled to know whether a settlement had been reached.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a summary judgment decision when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

Initially, we shall address the two claims that were dismissed on procedural grounds. The
record reveals that these two claims concern incidents that occurred on April 22, 2009 and July
8, 2009, respectively. Complainant initiated contact with an EEO Counselor on May 15,
2010, several months after the expiration of the 45-day limitation period. We find that
Complainant has not submitted any persuasive argument or evidence on appeal to warrant an
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extension of the 45-day limitation period. Accordingly, the dismissal of these claims is
AFFIRMED.2

As for claims (1-4), we shall assume arguendo that Complainant has set forth a prima facie
case of race discrimination. The Agency explained as to the rental car issue in claim (1) that
Complainant failed to resubmit the voucher for an economy class car despite being instructed
to do so by his Supervisor. This failure to comply with his Supervisor’s instruction resulted in
the issuance of a suspension. As for not preparing safety reports concerning the smoking
rooms, the Supervisor explained that the safety issues about designated smoking areas were
improper safety write-ups, and he told Complainant to no longer write them. The Supervisor
stated that Complainant commented that he would continue to document the issues as he had a
right not to be around second-hand smoke. The Supervisor explained as to the denial of the
annual leave request that Complainant was scheduled at that time to perform an inspection.
With regard to requesting a copy of the jury summons, the Supervisor stated that he required
other employees to submit proof of jury duty. We find that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions.

With regard to Complainant’s claim of harassment, we find that the alleged incidents of the
denial of leave, alleged reference to Complainant as a “problem child”, changing a work
assignment, giving Complainant’s work greater scrutiny and mentioning to Complainant that he
was not meeting standards were not of sufficient severity or pervasiveness to constitute a
hostile work environment. Even if these incidents could be considered sufficiently severe or
pervasive to constitute harassment, we discern no evidence that their occurrence was
attributable to motivation based on race or reprisal. Complainant’s work assignment was
changed due to a request and complaint from the District Manager for Technical Operations at
the Fort Worth facility concerning Complainant’s inspection report and exit briefing. As for
Complainant not meeting standards and his work receiving extra scrutiny, the Supervisor
asserted that during the past reviews of the safety inspectors’ reports, Complainant’s reports
have shown areas needing the most improvements, specifically in the areas of proper
identification/categorization and the clarity of the individual write-ups. We find that the
Agency articulated legitimate, nondiscriminatory reasons for the actions at issue.

We observe that Complainant has not on appeal presented arguments or evidence that establish
the Agency’s explanation for the alleged incidents at issue was pretext. Complainant has not
shown that he was treated differently than employees outside his protected group. We observe
as to the claim concerning Complainant being referred to as a “problem child” that a
Caucasian inspector stated that the Supervisor referred to him as a “problem child” during a
meeting. This employee stated that he was belittled by the Supervisor and that the Supervisor
would not tell the employees what standards they were failing to meet. Overall, it appears that
the Supervisor’s treatment of his subordinates, including Complainant, was based on

2 Even if we were to consider these claims as additional incidents of harassment, they are not
of such severity or pervasiveness to affect our conclusion on the merits.
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personality conflicts and the implementation of certain Agency policies, and not directed at
Complainant because of his race or protected activity.

As for Complainant’s claim concerning a violation of the confidentiality of the settlement
conference, we discern no evidence that suggests that any violation that may have occurred
was anything more than harmless error. Upon a review of the record, including the arguments
and evidence, we find that the AJ appropriately issued a summary judgment decision finding
no discrimination.

CONCLUSION

The Agency’s determination that no discrimination occurred was proper and 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).
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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

June 14, 2013
Date