0120110479
03-08-2011
Eric L. Wiggins, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Eric L. Wiggins,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120110479
Hearing Nos. 410-2009-00351X & 410-2009-00352X
Agency Nos. 4U1L08001 & 4U1L09001
DECISION
On October 23, 2010, Complainant timely filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from a final
Agency decision (FAD) dated September 22, 2010, 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 Commission accepts the appeal
pursuant to 29 C.F.R. � 1614.405(a).
ISSUES PRESENTED
Whether Complainant was discriminated against and subjected to a hostile
work environment:
1. based on his race (African-American) and sex (male) when on August 15,
2008, his first line supervisor physically restrained his exit from a
conference room; and
based on his race and reprisal for prior protected activity under Title
VII when:
2. on or about November 3, 2008, the Agency denied his request for
additional time off for voting in Richland County, SC, a two hour commute
from his duty station;
3. his second line supervisor questioned him about his whereabouts on
the morning of November 4, 2008;
4. his leave request for November 26, 2008, was denied to facilitate a
mid-term feedback session;
5. his request for overtime for November 25, 2008, was denied to
facilitate a mid-term feedback session;
6. on January 21, 2009, he was restrained with handcuffs and placed in
the back of a vehicle by security forces pursuant to a bomb threat;
7. on January 29, 2009, he received a notice of decision to suspend for
14 days for insolence; and
based on reprisal for prior protected activity under Title VII when:
8. he was not allowed to perform electrician duties on aircraft on the
flight line, but instead was assigned duties outside his maintenance
specialty;
9. his requests for annual leave on or after February 18, 2009, were
denied and he was threatened with discipline;
10. on February 27, 2009, entries were made on his 971 (Supervisor's
Employee Work Folder) when he was signing his time card; and
11. on March 18, 2009, his supervisor documented he was late to work on
his 971 record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Aircraft Electrical Mechanic, WG-10 at the Agency's 315th Airlift
Wing, Aircraft Maintenance Squadron, Charleston Air Force Base facility
in Charleston, SC.
Complainant filed two complaints, as amended, alleging the above issues.
Following an investigation, Complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ dismissed the hearing request
because Complainant failed to appear at the pre-hearing conference and he
generally failed to prosecute his case, by for example, failing to submit
a pre-hearing statement as ordered. The AJ remanded the complaint to the
Agency for a FAD without a hearing. The Agency issued a FAD pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant lists actions against him which he alleges were
discriminatory. In opposition to the appeal, the Agency argues its FAD
should be affirmed.
ANALYSIS AND FINDINGS
As an initial matter, Complainant does not argue that he was improperly
denied a hearing. Accordingly, we need not address the matter.
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must
generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).
To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Complainant alleges that he was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) he is a member of a
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. U.S. Postal Serv., EEOC Appeal
No. 01965238 (Oct. 16, 1998); 29 C.F.R. �1604.11.
Claim 1
On August 15, 2008, Complainant met with his first line supervisor in a
conference room where he was asked to acknowledge receipt of a five day
proposed suspension for absence without leave (AWOL), which he declined.
Complainant stated that when he tried to leave the conference room to go
to the restroom, his supervisor placed his forearm in his mid-section,
preventing him from leaving, and when he paused and tried again, his
supervisor more aggressively repeated the same action. Complainant
contended that this was seen by two witnesses. The supervisor countered
that he never stopped Complainant from leaving, rather, they got up to
leave the conference room at the same time, and as they were walking out
the door there was an incidental contact of their clothing. Witnesses 1
and 2 indicated that they saw no physical contact. In finding no
discrimination on issue 1, the Agency found that the incident did not
occur, as alleged. Complainant has not shown, by a preponderance of the
evidence that incident 1 occurred, and hence we find no discrimination
on this claim.
Claim 2
Complainant's tour ends at 3:30 PM, and his voting poll closed at 7 PM.
On November 3, 2008, he submitted a request for two hours of voting leave
to depart early to vote on November 4, 2008. His travel time from work
to the poll was about two hours.
An Agency Human Resources Specialist stated that under Agency policy
AFI 36-815, 8.4.3, an employee can be excused from duty to permit him to
report for work three hours after the polls open or to leave work thee
hours before the polls close, whichever requires the least time off.
This is supported by a copy of the policy in the record.
Complainant's second line supervisor stated that she denied Complainant's
voting leave request in accordance with the above policy. Nevertheless,
because the chain of command authorized a 59 minute early release
so personnel would have an extra cushion to vote without leave being
charged against them, she granted Complainant the above 59 minute early
release.
In arguing pretext and harassment, Complainant asserted that regulations
allow time off from work to get to the polls three hours before
closing time. This is a misinterpretation of the above regulation.
Complainant has not established discrimination on claim 2.
Claims 3 and 7
Around 9:10 AM on November 4, 2008, Complainant's second line supervisor
looked for Complainant in his duty section to talk about his voting leave
concern, and ascertained from other personnel that he was not on the
flight line. Complainant was located, and was taken to the second line
supervisor at 9:40 AM. The second line supervisor stated the following:
when she asked Complainant where he was, he belligerently asked why she
needed to know, and then responded he had been working. When she asked
where, Complainant replied "ask the expediter," and when she asked again,
Complainant repeated this, and added he could not remember. When she
asked what aircraft he was working on, Complainant said he could not
remember. Complainant then invoked his Weingarten rights and began
to leave her office, and despite asking him several times to come back,
refused and left. A section chief wrote in an email that he witnessed
the second line supervisor ask Complainant three times to return to her
office, and he ignored the request and departed the building. The 14
day suspension for insolence in claim 7 was based on the above events.
In the suspension decision, the Agency cited a series of progressive
prior disciplinary actions, the most recent a five day suspension on
November 3, 2008, for an unauthorized absences of two days and failure
to properly request leave.
Complainant countered that he told his second line supervisor that he was
on the flight line, and when she asked which aircraft he was working on,
he asked why she was questioning him. He contended that after invoking
his Weingarten rights, the second line supervisor continued to question
him, and he removed himself. At a later point Complainant wrote that
the insolence he was accused of only occurred once, and he could see
how a five day suspension would be justified.
Because the second line supervisor could not find Complainant while he
was on duty, there is no inference of disparate treatment or harassment
discrimination in her asking of his whereabouts. Complainant's answers
to his second line supervisor were evasive and insolent, and he ignored
three requests by her to return to her office. Complainant admitted
he was insolent, but that a two week suspension was not warranted.
The suspension, however, was part of progressive discipline. Complainant
failed to show he was discriminated against on claims 3 and 7.
Claims 4 and 5
The first line supervisor was overdue in giving Complainant his mid-term
feedback session. For this reason, on November 24, 2008, the second line
supervisor instructed the first line supervisor to complete the mid-term
feedback session prior to December 2008. Thanksgiving day was November
27, 2008, and Complainant already indicated he was taking off on Friday,
November 28, 2008.
The first line supervisor scheduled the mid-term feedback session on
November 25, 2008, for 8 AM, and stated it should take no more than 5 to
10 minutes. Complainant insisted on having the union present, albeit
the record shows there is no right to union representation during the
feedback process. While the first line supervisor told Complainant this,
he told him he could have union representation if he secured someone.
Complainant tried, but was unsuccessful in his quest. Periodically
throughout the day, the first line supervisor asked Complainant if he
was able to get a union representative. Toward the end of the day, the
first line supervisor advised Complainant he would have to come in on
November 26, 2008, unless the feedback session was completed that day.
Complainant declined, and went to the union office, and stayed there
past the end of his work day.
The feedback session was held on November 26, 2008, and took about
15 minutes. The first line supervisor's leave request for himself for
November 26, 2008, was canceled because he was required to give the
feedback session to Complainant.
Complainant contended that he was discriminated against when he was not
paid overtime for staying late on November 25, 2008, and was required
to report to work on November 26, 2008. The second line supervisor
explained that she denied the overtime request because Complainant took
it upon himself to go to the union building, and he was not entitled
to overtime to get something done that could have been done during the
workday and was only delayed because he demanded union representation,
which he had no right to have. She explained that Complainant and
the second line supervisor were required to come in the next day
because the feedback session was overdue and needed to be completed.
Complainant failed to show the Agency's explanations were pretext to
mask discrimination, and has not proven discrimination.
Claim 6
On January 21, 2009, a loud ticking noise was heard coming from
Complainant's locker, and a shift supervisor called security to report
this, which took it as a possible bomb. The building was evacuated, and
the security police and fire department arrived. The fire chief became
the on scene commander, and he summoned the second line supervisor.
He asked her whether there was anything happening that would cause
Complainant to put a bomb in his locker, or cause him to be over
the edge. She responded that he just had a meeting with a discharge
board to determine whether to discharge him from the reserves, and if he
was discharged, he would also lose his civilian job since it required
reserve membership. This was accurate. The second line supervisor
did not suggest that Complainant should be handcuffed, but security
handcuffed him and placed him in the back of a vehicle for a time.
The ticking sound was caused by a greeting card sound device which had
low batteries. Complainant contended that the event was instigated by
the second line supervisor.
Complainant failed to prove discrimination on claim 6. Instead, the
record shows that what sounded like a bomb was called into security, and
the second line supervisor gave an accurate answer to question asked by
the fire chief, the on scene commander. Complainant has not shown that
the explanations by Agency management for their actions were pretext to
mask discrimination.
Claim 8
In February or March 2008, Complainant was removed from the flight line
and given transcription duties. For each aircraft, there is a record of
maintenance tasks that need to be completed, and as the work is performed
a record is made of who did the work and when it was done. As the work
is done, it is transcribed into a computer. Handwritten records are
ultimately recorded in computer format, and Complainant was given the
task of comparing the computer generated forms to the written forms to
verify accuracy.
The Commander of the 315th Maintenance Group made the decision to give
Complainant his new assignment. He explained that if technical steps
are not precisely followed in maintaining an aircraft, lives are put
at risk, and there had been reports that Complainant made mistakes.
He stated that on top of this, he had trust issues with Complainant's
work since he had a series of personnel actions against him related
to performance, and failed to improve. The Commander explained that
Complainant had oral admonishments, letters of reprimand, suspensions, and
a military discharge hearing, and he was concerned Complainant could be
disgruntled which could cause him to be distracted, which was dangerous.
The Commander stated that others with issues which cause stress such
as financial matters, divorce, and so forth have been pulled from the
flight line. Complainant has not shown these explanations were pretext
to mask discrimination, or otherwise proven discrimination.
Claims 9, 10, and 11
These claims concern Complainant being charged with tardiness and/or
AWOL rather than being excused or granted leave, and entries on 971s
about this resulting discipline. The entries on February 27, 2009,
indicated disciplinary action was being initiated for tardiness on
February 18, 2009, failure to properly request leave on February 19,
2009, and tardiness on February 25, 2009. A 971 entry on March 18, 2009,
indicated that disciplinary action was being initiated for tardiness
that day. Referring to February 18, 2009, Complainant contended that
there was an emergency change over of security personnel that backed
up the gate and he was probably less than five minutes late. He wrote
that he explained this to his supervisor and one other person, who gave
thumbs up that it was O.K. Referring to February 19, 2009, Complainant
contended that the back gate was closed without notice, making him
30 to 45 minutes late. He stated that he called in, and management
said O.K. Referring to February 25, 2009, Complainant wrote that on
his way to work he called in to request 10 minutes of annual leave,
and when he checked in he was given another O.K. Regarding March 18,
2009, Complainant contended that he was not tardy.
Contemporaneous memos by Complainant's first line supervisor indicated
that Complainant was 10 minutes late on February 18, 2009; that
Complainant called in on February 19, 2009, and left a message on his
answering machine requesting 10 minutes of annual leave because he was
running late due to an accident on the highway; and that Complainant was
three to five minutes late on March 18, 2009. A contemporaneous memo
by another supervisor indicated that Complainant was about five minutes
late on February 25, 2009. The first line supervisor stated that on
February 18 and 19, 2009, Complainant failed to contact supervision
and was charged AWOL. He stated Complainant was not charged AWOL for
February 25, 2009, because he was less than six minutes late. He stated
Complainant failed to properly request leave for being tardy, and he
has no written leave requests. He stated that he witnessed Complainant
being late on March 18, 2009.
The first line supervisor stated that while others have been tardy, he
verbally discussed the issue with the employee, and the problem resolves
itself, except for one situation where he had to give a written verbal
counseling before the problem resolved. He stated that no one except for
Complainant has had consistent and continual problems with being tardy.
Complainant has not shown that the Agency reasons for not excusing his
tardiness, charging him AWOL, and making entries in his 971 were pretext
to mask discrimination.1
CONCLUSION
Based on a review of the record, and for the foregoing reasons, the FAD
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).
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
March 8, 2011
__________________
Date
1 The Agency removed Complainant effective May 8, 2009, under the charge
that he reported late to work on eleven dates between February 18,
and March 18, 2009, including February 18 and 19, 2009, February 25,
2009, and March 18, 2009. In an initial decision dated July 14, 2010,
the MSPB found that Complainant was tardy on the days charged, that his
absences were not authorized, and sustained the removal. 2010 WL 5820785
(Personnet).
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0120110479
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110479