0120111946
03-15-2013
Henry C. Dukes, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Henry C. Dukes,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120111946
Hearing No. 560-2008-00292X
Agency No. 9S1L07007
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's December 17, 2010 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.
At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-1102-11, at the Agency's Headquarters Air Mobility Command, Contracting Division, Specialized Contracting Branch, Operations Section, at Scott Air Force Base in Illinois. Complainant's First Level Supervisor was the Section Chief (S1 - Caucasian, male, White, 52). Complainant's Second Level Supervisor was the Branch Chief (S2 - Caucasian, female, White, 51).
On June 22, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), age (42), and reprisal for prior protected EEO activity when: (1) on April 24, 2007, he received an unfair civilian rating of record for the period of April 2006 to March 2007; and (2) from April 2006 to June 2007, he was subjected to a hostile work environment.
After a September 2, 2010 hearing, an EEOC Administrative Judge (AJ) issued a decision concluding that Complainant failed to prove that the Agency discriminated against him as alleged.
Regarding claim 1, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, S1 testified that Complainant worked very well in some areas, but had difficulty grasping details on more complex issues and made numerous errors. Moreover, the AJ found that Complainant presented no credible evidence, other than vague assertions, that the Agency's explanation was a pretext for race, sex, color, age, or reprisal discrimination. Although Complainant asserted that the rating did not take into account his increased workload and the complexity of his work, the AJ determined that his generalized statements were inconsistent with the evidence presented by Agency witnesses. Citing testimony from three of Complainant's co-workers (C1, C2, C3), S1, and S2, the AJ found that the amount and complexity of work increased for Complainant's entire work unit due to changes at the Agency, that Complainant's work on the server and on purchasing requests contained numerous errors, that several co-workers requested that Complainant not work with them on those duties, and that several customers made complaints about Complainant's work. Finally, the AJ found that the evidence failed to substantiate Complainant's allegation that other employees made similar mistakes.
Regarding claim 2, the AJ noted that Complainant testified to the following incidents of harassment: (a) in June 2006, he overheard C2 say he was "slow and stupid;" (b) in June 2006, he "heard" indirectly that a co-worker (C4) told others not to solicit contributions for a baby shower gift from employees "of color;" (c) in June 2006, he felt "racial overtones" during a team meeting when, in response to a question he asked, C4 "rudely" stated that it was not the time to discuss the issue; and (d) in recent years, S1 took his Caucasian co-workers out to lunch on their birthdays but did not similarly take him out to lunch.
The AJ, however, found that Complainant failed to present sufficient credible evidence to establish that the incidents complained of were based on his race, sex, color, age, or prior EEO activity. Moreover, the AJ found that the incidents complained of were not sufficiently severe or pervasive to rise to the level of a hostile work environment. As to incident (a), the AJ credited Complainant's testimony over C2's testimony and found that C2 made the comment about Complainant, albeit not directly to him. As to incident (b), the AJ found that Complainant failed to establish that C4 made the people "of color" comment because he presented no direct evidence on the issue and his testimony on the matter was hearsay at best. In addition, the AJ cited testimony from S1 that Complainant was not asked to contribute because he had not worked with the employee for whom the baby shower was being held. As to incident (c), the AJ cited testimony from S1 that he agreed with C4 that it was time to move on and that it was not unusual for C4 to speak in such a manner because her personality was very matter-of-fact and direct. As to incident (d), the AJ cited testimony from S1 that he took Complainant out to lunch on his birthday in prior years, but Complainant cancelled the lunch or did not appear for the lunch in recent years.
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. Nat'l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VI.B. (Nov. 9, 1999).
On appeal to the Commission, the burden is squarely on the party challenging the AJ's decision to demonstrate that the AJ's factual determinations are not supported by substantial evidence. See EEO MD-110, Ch. 9, � VI.C. In this case, this means that Complainant has the burden of pointing out where and why the AJ's findings are not supported by substantial evidence. Cf. id. (pointing out that "[t]he appeals statements of the parties, both supporting and opposing the [AJ's] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ's] factual determinations are supported by substantial evidence"). Here, Complainant did not submit a statement or brief in support of his appeal.
After a careful review of the record, we find that the AJ's findings of fact are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. As explained above, the AJ found that Complainant failed to present sufficient credible evidence that any of the Agency's actions were based on his race, sex, color, age, or prior EEO activity. We discern no basis to disturb the AJ's decision. Therefore, after a review of the record in its entirety, it is the decision of the 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 (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
__3/15/13________________
Date
2
0120111946
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111946