0120064511
03-10-2008
Leon Robinson, Complainant, v. Mary E. Peters, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Leon Robinson,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01200645111
Hearing No. 310-2006-00082X
Agency No. 2005-19655-FAA-05
DECISION
On July 24, 2006, complainant filed an appeal from the agency's June
26, 2006, 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Materials Examiner and Identifier, WG-6912-07, at an agency
facility in Oklahoma City, OK. The record reflects that complainant and
another employee (Co-worker) performed similar job functions and held
the same title. Complainant's work was primarily in the Reutilization
and Marketing (R&M) section, which involved processing excess materials
that arrived at the facility. The Co-worker mainly worked in the Field
and Equipment (F&E) section, which required him to process materials
that were purchased for future use. Both complainant and the Co-worker
were expected to be able to process R&M and F&E materials if management
ordered them to do so. Complainant alleged that the Co-worker never
processed any R&M materials, while complainant processed both R&M and
F&E materials. Complainant additionally alleged that he repeatedly
complained to management that he was required to do more work than
the Co-worker, and that management had threatened that he could be
terminated if complainant did not follow instructions. Complainant
further alleged that the Co-worker often refused to do work, ignored
RMO1's orders, looked at inappropriate internet sites on his computer,
and cursed at other employees and management without being punished.
Complainant indicated that he did not curse at work and did not use work
computers in an inappropriate manner. Complainant also alleged that he
was denied training opportunities, that management refused his request for
a desk audit to be conducted, and that he was denied performance awards.
On May 30, 2005, complainant filed an EEO complaint alleging that he was
discriminated against on the bases of race (African-American) and color
(Black) when he was subjected to less favorable terms and conditions of
employment than a similarly situated non-African American and non-Black
co-worker on a continual basis.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation and a notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing, and the AJ held a hearing on May 8, 2006.
The AJ issued a decision on June 5, 2006, finding no discrimination.
Specifically, the AJ held that, although complainant established a prima
facie case of discrimination, he failed to establish that the agency's
legitimate, nondiscriminatory reasons for its actions were a pretext for
unlawful discrimination. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that he was
subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in finding
no discrimination. Complainant argues that the record evidence and
testimony provided at the hearing support his contention that he was
subjected to unlawful discrimination. In response, the agency requests
that we affirm its final decision.
ANALYSIS AND FINDINGS
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.
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).
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).
Complainant must initially 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Service Board
of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
We concur with the AJ's determination that the agency articulated
legitimate, nondiscriminatory reasons for its actions. RMO1 testified at
the hearing that, while both employees could be ordered to process both
R&M and F&E materials, complainant primarily worked in the R&M section,
and the Co-worker primarily worked in the F&E section, because they had
expressed a preference to work in their respective sections. RMO1 further
testified that the F&E work was more complicated and time consuming,
and the F&E work was a higher agency priority than the R&M work.
As a result, complainant was often asked to assist with the F&E work.
RMO2 testified that he had heard that employees felt complainant was
forced to do more work than the Co-worker, but RMO1 informed him that
this was not the case. Both RMO1 and RMO2 testified that the Co-worker
completed any work that he was ordered to perform.
RMO1 stated that he never threatened to terminate complainant if he did
not complete his work and denied other allegations made by complainant,
including that he refused complainant's requests for training or
opportunities to "shadow" other employees for learning purposes.
RMO2 stated that complainant had never requested an official desk audit,
and complainant acknowledged at the hearing that he had received several
annual cash awards. Both RMO1 and RMO2 testified that they were unaware
that the Co-worker was allegedly looking at inappropriate internet sites
on his computer.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext
for discrimination. Complainant can do this directly by showing that
the agency's proferred explanation is unworthy of credence. Burdine,
450 U.S. at 256. We find that the AJ's determination that complainant
failed to establish pretext is supported by substantial evidence in
the record. Moreover, we find that the record is devoid of any evidence
that the agency's actions were motivated by discriminatory animus towards
complainant's race or color.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
factual findings are supported by substantial evidence in the record
and that her decision referenced the appropriate regulations, policies,
and laws. We discern no basis to disturb the AJ's decision. Accordingly,
after a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in the
decision, the agency's final order is AFFIRMED.
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
March 10, 2008
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
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0120064511
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064511