0120081332
05-07-2008
Darrell Bedford, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Darrell Bedford,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081332
Agency No. 5E0J06008
Hearing No. 451-2007-00246X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's December 31, 2007 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Electronics Mechanic (Avionics), WG-2604-11, at the agency's T-38 Maintenance Support Branch, T-38 Division, Maintenance Directorate, 47th Flying Training Wing (AETC), Laughlin Air Force Base, Texas.
On June 29, 2006, complainant filed the instant formal complaint. Therein, complainant claimed that the agency discriminated against him on the bases of race (African-American), national origin (African-American), age (44), and in reprisal for prior EEO activity when:
1. in March 2006, his supervisor denied his request to be detailed as a dispatcher in the T-38 section;
2. in May 2006, after a co-worker failed to give complainant a ride to Hangar 1, complainant's supervisor told complainant to walk, and later, when complainant complained to the supervisor, a verbal confrontation ensued;
3. in June 2006, complainant's supervisor misled complainant about the procedure for calling in and requesting sick leave resulting in complainant being charged Absent Without Leave (AWOL);
4. complainant received a performance evaluation for the 2006 rating period that did not accurately reflect his actual job performance for the rating period, and the agency failed to award him a performance award to which he was entitled;
5. on June 14, 2006, the agency did not afford complainant the opportunity to work overtime;
6. on August 3, 2006, complainant's supervisor allowed a co-worker to curse complainant; and
7. on August 16, 2006, after complainant report to his supervisor that a co-worker had assaulted him, instead of taking action against the co-worker, the supervisor instead wrote up the complainant.1
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing by videoconference on October 11, 2007 and November 19, 2007. The AJ appeared from San Antonio, Texas, while the parties and witnesses were located in Del Rio, Texas. On November 26, 2007, the AJ issued a bench decision finding no discrimination.
In its decision, the AJ concluded that complainant had not met his burden of proving that the agency's reasons for its actions were a pretext to discriminate against him. The agency subsequently adopted the AJ's decision in its final order.
As an initial matter, we again note that the AJ chose to conduct this hearing by videoconference. In Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006), the Commission recently determined that videoconferencing provides an acceptable alternative to an in-person hearing. The Commission identified a number of factors that an Administrative Judge should consider before electing to proceed via videoconferencing, including: the availability and proximity to the participants of the videoconferencing facilities; the adequacy of the available videoconferencing facilities, to include any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objections of the parties, if any. Id.
In the instant case, as in Allen, there is no indication of objection to the use of video-conferencing by either party. Under these circumstances, the Commission concludes that the AJ did not abuse her discretion by electing to hold a video-conference hearing.
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9 � VI.B. (November 9, 1999).
Having reviewed the record, we find that the evidence substantially supports the AJ's decision. Even if we assume that complainant established a prima facie case of race, national origin, age and reprisal discrimination, we agree with the AJ that the agency provided legally sufficient legitimate reasons for its actions and that complainant failed to prove that these reasons were pretext. Moreover, we find that the alleged actions do not rise to the level of harassment under EEO law, as complainant failed to provide proof that the agency actions were based on his race, national origin, age and prior protected activity.
It is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final order because the AJ's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 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 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 (S0408)
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 (Z0408)
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 that the Court appoint an attorney to represent you and that the Court 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 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
May 7, 2008
__________________
Date
1 The record reflects that by letters dated June 1, 2006 and August 18, 2006, the agency granted complainant's request to have his formal complaint amended to include claims 3, 4, 6 and 7.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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