0120072726
10-11-2007
Earl H. Boldware, II, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Earl H. Boldware, II,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072726
Hearing No. 470200700009X
Agency No. 200J05522006200220
DECISION
On May 18, 2007, complainant filed an appeal from the agency's May 14,
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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
ISSUES PRESENTED
The issue presented by this appeal is whether the EEOC Administrative
Judge's decision finding no discrimination is supported by substantial
evidence in the record.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Electrician, WG-10, at the agency's Veterans Affairs Medical Center
facility in Dayton, Ohio.
On January 12, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (African-American)
and in reprisal for prior protected EEO activity under Title VII when:
1. he was not selected for the position of Supervisory Electrician WS-11;
2. he was subjected to a hostile work environment when the following
occurred:
a.. he was accused of falsifying a work order and failing to
follow a direct order;
b. he was warned about the proper procedures for requesting
leave;
c. he was warned about not performing up to expectations;
d. he was told he was being checked on;
e. he was denied official time to prepare his EEO complaint.
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). The AJ
held a hearing on March 5, 2007 and issued a decision on April 18, 2007
finding no discrimination. The agency subsequently issued a final order
adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant, in a lengthy brief, argues that the AJ erred in
his conduct of the hearing. Specifically, he argues that the AJ unfairly
refused to allow his representative to speak during the hearing and did
not require the agency to produce his witnesses. He challenges the AJ's
finding that the agency had legitimate reasons for the actions he claims
created a hostile work environment. Complainant argues that the AJ erred
in finding that the selectee had better qualifications than he had because
he had earned several awards for his performance and was named employee
of the month. Additionally, complainant argues that the AJ erred in
requiring him to prove that his qualifications were plainly superior.
The agency submitted no additional comments on appeal.
ANALYSIS AND FINDINGS
As a preliminary matter, complainant's claims that certain of the AJ's
rulings during the hearing were unfair and should result in a reversal
of his decision are unfounded. We apply the standard set forth in our
regulations which state that the AJ has discretion absent a showing of
abuse to regulate the conduct the hearing. 29 C.F.R. �1614.109(e); see,
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), ch.7-8 (November 9, 1999). In this regard, there is no
indication in the transcript of the proceedings that complainant raised
the issue of the agency's failure to produce certain witnesses. In fact,
the AJ gave the parties the opportunity to object to his rulings regarding
witnesses but complainant indicated he had no objection. Secondly, while
the record reflects that the AJ did not permit complainant's non-attorney
representative to speak at certain times during the hearing, complainant
did not lodge an objection at the time. The Commission finds that this
was not an abuse of discretion. Id.
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. Applying this
standard, the Commission concludes that the AJ's decision is supported
by substantial evidence. That is, the record supports that the agency
based its selection for the position of Supervisory Electrician on the
fact that the selectee had more supervisory experience than complainant
and not because of complainant's race or the fact that he engaged in
protected activity. Additionally, there is substantial evidence to
support the AJ's conclusion that the incidents of alleged harassment did
not create a hostile work environment based on complainant's protected
EEO activity. In this regard, the evidence supports that complainant
did not perform some work assignments in a timely manner and was asked
to account for his lapse during verbal counselings.
Complainant challenged the AJ's conclusion that the selecting official
and members of the interview panel were credible. He also challenged
the AJ's finding that his supervisor's explanations for his actions were
credible. 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). We find that complainant did not demonstrate
that these witnesses' testimony so lacked credibility that the AJ's
decision should be overturned.
The Commission having found that there was substantial evidence to
support the AJ's finding of a non-discriminatory motive for each of the
challenged actions, it follows that, as a matter of law, these incidents
did not create an unlawful hostile work environment.1
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission
concludes the AJ's decision finding no discrimination was supported by
substantial evidence in the record. For these reasons, we affirm the
agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
___10/11/07_______________
Date
1 To establish a claim of harassment based on race or reprisal,
complainant must show that: (1) he is a member of the statutorily
protected class; (2) he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
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0120072726
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072726