01A23444
09-03-2003
James E. Trezvant, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
James E. Trezvant v. Department of Transportation
01A23444
September 3, 2003
.
James E. Trezvant,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A23444
Agency No. DOT 5-98-5009R
Hearing No. 330-A1-8008X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that complainant, an Air Traffic Control Specialist,
GS-14, at the agency's Houston Air Route Traffic Control Center, filed
a formal EEO complaint on October 22, 1997, alleging that the agency
discriminated against him on the bases of race (African-American), age
(D.O.B. 5/17/50), and in reprisal for prior EEO activity when he was
suspended for three days from his operational duties (involving the
separation of aircraft) and that the agency had destroyed Systematic
Air Traffic Operations Research Initiative (SATORI) tapes that he had
requested during his informal complaint processing.
On October 29, 1998, the agency dismissed his complaint for failure to
state a claim on the grounds that complainant's suspension from duties
involving the separation of aircraft was a proposal to take action or
a preliminary step to a personnel action. Complainant appealed to the
EEOC, and the Commission found that suspending complainant temporarily
and subsequently admonishing him via a memorandum reflecting that future
incidents would warrant review and possible action, affected a term,
condition or privilege of complainant's employment. Concerning the
destruction of the SATORI tapes, the Commission found that complainant
failed to state a claim. See Trezvant v. Department of Transportation,
EEOC Appeal No. 01991316 (April 11, 2000).
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ found that complainant failed to establish a prima facie case
of race or age discrimination in that he failed to show that similarly
situated employees were treated differently. With respect to the reprisal
issue, the AJ found that he was also unable to show a prima facie case
of discrimination. Specifically, she found that while he engaged in
protected activity, there was no evidence of a causal relationship between
his activities and the adverse treatment taken in his case. The AJ found
that complainant was suspended from the core duties of his position for
three days and that this action was not a discriminatory act in that
a threat of future disciplinary action is not a basis for a complaint.
Specifically, the AJ noted that complainant was never disciplined, he was
not placed on a performance improvement plan nor was he given a negative
performance appraisal. The AJ concluded that because complainant failed
to establish prima facie cases of discrimination or reprisal, a finding
of no discrimination was appropriate.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the AJ erred in her decision because similarly
situated persons were treated differently than complainant. Complainant
does not name the comparative persons in his appeal brief. He asserts
that evidence of pretext is shown by the destruction of the SATORI
tapes which recorded the actions of the Air Traffic Control Specialists.
In response, the agency makes no contentions on appeal.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact in dispute. 29 C.F.R. 1614.109(g). This regulation is patterned
after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the
substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage
and all justifiable inferences must be drawn in the non-moving party's
favor. Id. at 255. 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. If a case
can only be resolved by weighing conflicting evidence, the issuance of
a decision is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without
a hearing only after determining that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
In a claim such as that presented by complainant, which alleges disparate
treatment based upon race and age, and where there is an absence of
direct evidence of such discrimination, the allocation of burdens
and order of presentation of proof is a three-step process. Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying
the analytical framework described in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973), to an ADEA disparate treatment claim).
First, complainant must establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination; i.e., that a prohibited consideration was
a factor in the adverse employment action. Kimble v. Department of
the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves, 530 U.S. at 143.
With respect to complainant's reprisal claim, to establish a prima facie
case of reprisal discrimination, complainant must present facts that,
if unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6,
1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
Specifically, in a reprisal claim, and in accordance with the burdens
set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), a complainant may establish
a prima facie case of reprisal by showing that: (1) he engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
Complainant contends that he was treated differently than other employees
and that the SATORI tapes for July 28, 2000 to August 28, 2000, would
show that similarly situated White employees
were not suspended or disciplined. While, the issue of the destruction
of the SATORI tapes was dismissed in his previous appeal, it can be
raised as background evidence. However, complainant provides no specific
evidence to support his conclusion. Aside from stating that younger,
White Air Traffic Control Specialists were not disciplined for worse
conduct than himself, complaint has made not any representations that
he would identify with specificity these allegedly similarly situated
individuals at the hearing.
In the hearing context, in a disparate treatment case such as this one,
this means that we must look to the McDonnell Douglas evidentiary scheme
to determine which facts may be "material" in this sense. See Petty
at 13. If, for example, "a complainant is unable to set forth facts
necessary to establish one essential element of a prima facie case,
a dispute over facts necessary to prove another element of the case
[i.e., whether the agency's legitimate non-discriminatory reason for
its actions is true] would not be material to the outcome." EEO MD- 110,
at 7-15. A review of the investigative report indicates that complaint
has been unable to set forth facts necessary to establish one element
of the prima facie case. Specifically, he has been unable to show that
he was treated differently than similarly situated Air Traffic Control
Specialists outside of his protected classes or that there was any other
evidence that would allow one to draw an inference of discrimination.
Therefore, there is no genuine issue of material fact in dispute with
respect to the race and age discrimination claims.
With respect to the reprisal claim, the record reveals that complainant
was the local president of the National Black Coalition for Federal
Aviation Employees ( NBCFAE) and Chairman of a local EEO committee
whose function was to observe certain ethnic holidays but did not
include participation in the EEO counseling or complaint process.
Complainant states that he did not counsel individuals who filed EEO
complaints, represent them or serve as a witness for them and that
he did not represent union members in grievances against the agency.
Complainant stated that he filed a union grievance, but he did not
represent that the grievance raised an issue of employment discrimination.
The first and second line supervisor stated that they were unaware of
complainant's duties as Chairman of the EEO committee. The second line
supervisor stated that he was aware of complainant's participation as
local president of the NBCFAE. Complaint has been unable to demonstrate
that his participation as president of NBCFAE or the EEO committee
constituted protected activity. Aside from belonging to the NBCFAE and
the EEO committee, he has not offered any evidence that while in these
positions he opposed any practice made unlawful under the employment
discrimination statutes or that he participated in the EEO process.
After a careful review of the record, the Commission finds that grant of
a decision without a hearing was appropriate, as no genuine dispute of
material fact exists. We find that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we find that he failed to present evidence that any of
the agency's actions were motivated by discriminatory animus toward his
protected classes.
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
September 3, 2003
__________________
Date