0120080999
08-19-2009
Jerry A. Miles, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Jerry A. Miles,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120080999
Agency No. 9H1C05016F06
DECISION
On December 19, 2007, complainant filed an appeal from the agency's
December 6, 2007 final decision 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 accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
employed as a Materials Handler Supervisor, WS-2001-09, in the Logistics
Readiness Squadron, Nellis Air Force Base (AFB), Nevada. On August 9,
2004, complainant was promoted to the position of Material Manager.
As a new supervisor, complainant was required to successfully complete a
one-year supervisory probationary period. On August 5, 2005, management
issued a termination of supervisory probationary period indicating
that complainant failed to satisfactorily complete his probation.
Complainant was changed to a lower grade and assigned to the General
Supply Specialist, GS-2001-09, position.
On October 17, 2005, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (African-American),
national origin (African-American), color (Black), and subjected to
hostile work environment when:
1. On May 26, 2005, he was subjected to a hostile work environment after
a verbal altercation and misunderstanding with his first line supervisor
(2Lt. JDB);
2. On August 4, 2005, he received a "Notice of Termination of Supervisory
Probation," four days before his probationary period was to successfully
end; and
3. he was treated differently because he was singled out as a probationary
supervisor.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
In its FAD, the agency concluded that it had articulated legitimate,
non-discriminatory reasons for its actions that complainant failed
to show were a pretext for unlawful discrimination. Specifically,
2Lt. JDB testified that complainant received a Notice of Termination
of Supervisory Probation because he had not corrected his deficiencies
despite previous notifications. Cited deficiencies included failure
to keep his supervisor informed of his whereabouts during duty hours;
and failure to properly maintain the main warehouse, i.e., damages to
the property, excessive items at the warehouse, and warehouse's general
condition. Management also cited deficiencies on the Standard Asset
Tracking System (SATS) and the Supply Discrepancy reports. Regarding the
harassment claim, the agency found that complainant did not prove he
was subjected to harassment sufficiently severe or pervasive so as to
render his work environment hostile.
CONTENTIONS ON APPEAL
On appeal, complainant contends, among other things, that when he first
assumed his position the outside storage warehouse area was in "horrible"
condition, and numerous items in storage were not clearly identifiable.
Accordingly, complainant contends that he was not responsible for the
warehouse's poor conditions. Complainant also contends that during his
supervisory probation period he received an outstanding performance rating
on his annual Civilian Appraisal, as well as a Performance Award initiated
by his former supervisor, Captain MLF. Complainant alleged that shortly
after 2Lt. JDB replaced Captain MLF, he started having problems training
and communicating with him [2Lt. JDB]. Further, he contends that during
his supervisory probation period he had four different supervisors, and
that 2Lt. JDB had the least amount of logistics knowledge and supervisory
experience. Complainant stated that he always notified 2Lt. JDB about his
whereabouts, but most of the times he was visiting different work sections
because he tried to visit frequently all of his areas of responsibility.
Complainant also contends that the deficiencies on the Supply Discrepancy
Report dated back to 2002 and 2003, well before his arrival in the unit.
Complainant further contends that there was no established guidelines
on managing the SATS programs, so he developed local procedures and
guidelines, and implemented as well trained all subordinate supervisory
personnel on these procedures. Finally, complainant contends that even if
all things cited by management as rationale for terminated his probation
period were actually true, they did not justify the termination of his
probation.
In reply, the agency maintains that the analysis, findings, and
conclusions put forth in its FAD are correct. The agency contends
that complainant has not provided any evidence of pretext, and asks the
Commission to affirm the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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 Construction
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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
In this case, the Commission assumes, arguendo, that complainant
established a prima facie case of unlawful discrimination. We find,
however, that the agency provided legitimate, non-discriminatory
reasons for its actions. Specifically, agency management stated that
it terminated complainant's supervisory probation period because of his
performances deficiencies. Complainant argued that his problems started
when 2Lt. JDB became his supervisor because under Captain MLF he was
rated "Outstanding." By letter dated October 11, 2005, complainant also
alleged that 2Lt. JDB did not properly understand the system due to his
"inexperience and lack of knowledge of the logistics business and the
responsibilities of the Material Management Flight." In the same letter,
complainant stated that 2Lt. JDB "abruptly" terminated him, without any
previous feedback regarding his performance.
First, we note that complainant was not rated "Outstanding," rather,
Captain MLF rated him as "highly average, meeting basic requirements."
Moreover, Captain MLF described complainant's work as a supervisor as "not
necessarily exceptional." We also note the record reflects that on June
9, June 30, and July 28, 2005, 2Lt. JDB informed complainant of several
deficiencies in his performance that needed improvement, which according
to 2Lt. JDB complainant ignored and took no actions to improve. Further,
we find complainant's disagreement with 2Lt. JDB over the business needs
of the agency does not prove that the agency's decision was motivated by
discriminatory animus. Without proof of a demonstrably discriminatory
motive, we do not second-guess an agency's personnel decisions. See,
e.g., Chavez v. United States Postal Service, EEOC Appeal No. 0120055246
(January 5, 2007); see also Carson v. Bethlehem Steel Corporation, 82
F.3d 157, 159 (7th Cir. 1982) (noting that "the question is not whether
the employer made the best, or even a sound, business decision; it is
whether the real reason [was discriminatory]"). Therefore, we find that
complainant failed to prove that the agency's articulated reasons for
its actions were pretext for unlawful discrimination.
Regarding complainant's claim of harassment, we note that harassment is
actionable only if the incidents to which complainant has been subjected
were "sufficiently severe or 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., 523 U.S. 75 (1998); Cobb v,
Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
See Roberts v. Department of Transportation, EEOC Appeal No. 01970727
(September 15, 2000) (citing Benson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982)). Further, the harasser's conduct is to 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).
To establish a prima facie case of harassment, complainant must show that:
(1) he is a member of a statutorily protected class; (2) he was subjected
to unwelcome verbal or physical conduct related to his membership in that
class; (3) the harassment complained of was based on his membership in
that class; (4) the harassment had the purpose or effect of unreasonably
interfering with his work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer.
We find under these standards, that complainant's claim of hostile work
environment must fail. A prima facie case of hostile work environment
is precluded based on our finding that complainant failed to establish
that the termination of his probationary period was motivated by
discriminatory animus. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000). Further, we find that
the incident on May 26, 2005, was not sufficiently severe or pervasive to
create a hostile work environment. We also find no persuasive evidence
that the alleged harassment was motivated by unlawful animus towards
complainant's protected classes.
CONCLUSION
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final decision because the preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
August 19, 2009
Date
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0120080999
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080999
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