0120123061
01-07-2013
Mark W. Kirkpatrick, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Mark W. Kirkpatrick,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120123061
Hearing No. 560-2008-00257X
Agency No. 4L0J07001
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 3, 2012 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.
BACKGROUND
On June 27, 2005, Complainant was hired as a temporary Painter at the Agency's Sheet Metal Shop, 97th Maintenance Directorate, Manufacturing Flight, Altus Air Force Base (AFB), Oklahoma, not to exceed June 27, 2006.
On July 18, 2007, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the basis of reprisal for prior EEO activity when:
on April 2, 2007, he was terminated from his temporary position less than one month after he had testified at an EEOC hearing for a co-worker.
The record reflects that Complainant was responsible for painting aircraft parties, corrosion control and painting age equipment. The record further reflects that from April 2006 to May 2006, Complainant was detailed to the survival shop as a fabric worker. Next, he was detailed to the paint shop as a work leader for aircraft painters from May 2006 to September 2006. Complainant received relatively favorable review for the work-leader detail except for his communication with subordinates.
The record reflects that in his September 19, 2006 e-mail, Complainant's third-level supervisor suggested that after the work-leader detail expired, Complainant should be detailed indefinitely to another shop because it was unlikely that the Agency would have a permanent painter position available in the future, and the other section could use Complainant's help. In November 2006, Complainant began a new detail as a tools and parts attendant in the Sheet Metal Shop.
The record reflects that in December 2006, Complainant suffered an on-the-job injury. In January 2007, Complainant's second-level supervisor offered Complainant a detail position in the Aircraft CTK division which he declined. Complainant was later offered a position in the tool and crib shop under his division but he declined it.
On March 22, 2007, Complainant's second-level supervisor sought a position for Complainant in the Aircraft CTK division. The record reflects that the response from the supervisor in that division was that Complainant would need to work either a midnight or a swing shift. However, the supervisor ultimately decided that since Complainant's detail was set to expire shortly, they had no need for him but if he were to transfer, it would be to the mid shift.
The record reflects that on March 2, 2007, Complainant testified at a co-worker's hearing before an EEOC Administrative Judge. Ten days later, on March 12, 2007, Complainant's detail supervisor emailed the second and third-level supervisors stating that he had evaluated Complainant's workload requirements and concluded that the detail would be terminated because assigned employees could handle the remaining workload.
The next day, on March 13, 2007, Complainant's second-level supervisor confirmed in an email that Complainant's detail had ended because he was no longer needed. Further, the second-level supervisor stated that the paint shop did not have enough work to keep all the painters busy and was detailing them to the Sheet Metal Shop for cross-training. The second-level supervisor requested the third-level supervisor to look for other temporary employment for Complainant, whose term would end in June 2007.
On April 2, 2007, the third-level supervisor terminated Complainant because the temporary services that he was hired to do were no longer needed The unit was finished with all the projects that Complainant was hired for.
On September 9, 2009, an EEOC Administrative Judge (AJ) issued a decision without a hearing finding no discrimination. On September 28, 2009, the Agency issued a final order implementing the AJ's decision. Complainant appealed the decision to this Commission.
On appeal, we concluded that the record had made it impossible to discern the reasons why the detail supervisor felt compelled to do a formal evaluation of Complainant's workload requirements shortly after Complainant had testified against management in an EEO case, given the fact that the detail supervisor did not respond to requests by the EEO investigator for an interview. We also concluded that the record was not adequately developed to determine whether the Agency's primary explanation for terminating Complainant was a pretext to hide a retaliatory motive. Therefore, we concluded that it was incorrect to make a decision by summary judgment in this case. We reversed the Agency's September 28, 2009 final order implementing the AJ's decision, and remanded the matter to the Agency for a hearing. Kirkpatrick v. Department of the Air Force, EEOC Appeal No. 0120100363 (February 15, 2012). On remand, the Agency sent Complainant's formal complaint to the EEOC Dallas District Office for a hearing, which is now the subject of the instant appeal.
On May 16, 2012, the AJ held a hearing, and issued a decision on June 5, 2012. The Agency subsequently issued the instant final order adopting the AJ's finding of no discrimination.
In her June 5, 2012 decision, the AJ found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the basis of retaliation. The AJ further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
The AJ noted in his testimony, Complainant's third-level supervisor stated that Complainant was hired "to assist a temporary hire in our painter's shop because we were preparing for an inspection and we had several static display aircraft around the base. And, we still had C-5s at that time which required a lot of painting of panels and exterior, plus the extra wheels we had with the C-5, so there was a lot of work and we wanted to keep up on that...and as aircraft were all brought up to standards, that's when [Complainant's] work started to subside at that time." The third-level supervisor stated that because Complainant did an excellent job, management "tried to find some - - when some of the painting work went down and some other areas had a need for labor, we offered for [Complainant] to work in these other areas to try to keep him on as long as we could, as long as there was a labor in those areas. And, he did a good job for everybody including the survival shop, paint shop and the CTK."
The third-level supervisor testified that he discussed trying to find work for Complainant with the second-level supervisor and a named Agency official but they had no additional work for Complainant. The third-level supervisor stated that he approached Complainant "I believe, on two occasions about taking a job over in Airlift CTK tool shop over in the Airlift Section, in another division. I contacted the division chief, [named division chief], and he said he didn't have anything on dayshift; however, he would have something on the mid-shift." The third-level supervisor stated that Complainant did not want to work in Airlift.
The third-level supervisor stated that in March 2007, he learned that Complainant sent an email to his second-level supervisor "saying he was working for a [named company] contractor or had a job lined up in early April, and then, I believe, probably the last day of March or right there - - right around when we were out of work and determining the termination, [second-level supervisor] just kind of forwarded that to me and so I was unaware that [Complainant] even had another job lined up, that we still don't have any work in the CTK." The record reflects that during the relevant time, Complainant asked his second-level supervisor if he could extend his end date to April 13, 2007 so he would have a chance to use some leave he had saved.
The third-level supervisor testified that he notified Complainant because he could not find him anymore work and that he was being terminated effective April 2, 2007 because his services were no longer needed. Specifically, the third-level supervisor stated that he terminated Complainant on April 2, 2007 because "that's when the work ran out. I was charged to be a good steward of public funds and we looked at everybody's temporary position. And if we had work, we would keep the folks on-board that could do that and we certainly looked for work for [Complainant]. There was no available and the work offered to him was declined. And, I think it was the right thing to do. You know, we have a code of ethics and public trust to uphold that and that's what I was charged with."
With respect to Complainant's allegation that the third-level supervisor promised him a permanent position, the third-level supervisor denied it. Specifically the third-level supervisor stated that he denied promising the temporary employees, including Complainant, that they would be made permanent employees.
The AJ noted that during his testimony, the second-level supervisor stated that he does not remember the third-level supervisor promising the temporary employees permanent positions "but I remember him saying that he was going to do everything he could that none of the temporaries would have to leave."
The AJ noted that according to the Employee and Labor Relations Specialist (Specialist), she testified that a temporary appointment could not be extended beyond two years. Specifically, the Specialist stated that in March 2007, Complainant's third-level supervisor approached her and stated that the work Complainant had been hired to perform had been completed. The Specialist stated that the third-level supervisor told her that while Complainant was a great employee, management wanted to keep him employed in other areas to keep him employed for as much of the two years as possible. The Specialist stated that she told the third-level supervisor "all a temporary appointment, if the work is completed, there's no other work that can be done, a temporary appointment can be ended at any time."
The AJ noted that Complainant alleged that when he was terminated, he was the only temporary employee who had not been made permanent. Complainant alleged that a painter position was filled by a named temporary employee after he left in April 2007. The AJ noted a review of the record reflects that the temporary employee was not hired as a painter until July 20, 2008. Specifically, the AJ noted that the temporary employee was transferred from a Laborer position at Altus AFB to a temporary painter position, not to exceed one year. The AJ noted that according to the Specialist, she stated that the temporary employee received the position by way of a vacancy announcement.
Complainant, on appeal, argued that the AJ erred finding no discrimination For instance, Complainant stated that the interrogatories were never answered by the Agency, and that his witnesses were excluded from the hearing because they were not current Agency employees. Complainant further argued that information regarding a worker's compensation claim "was not allowed into evidence. This showed that management had falsified official documentation, with the purpose of clearing my workman's compilation claim in order to terminate me."
Complainant argued that he was subjected to harassment by his co-workers and management. Finally, Complainant alleged that his third-level supervisor "had promised all temps permanent positions within MEO. Confirmed by [second-level supervisor] and [named former Agency employee]."
The instant appeal followed.
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).
As an initial matter, the Commission notes that one witness testified by telephone at the hearing held by the AJ. The Commission has held that testimony may not be taken by telephone in the absence of exigent circumstances, unless at the joint request of the parties and provided that specified conditions have been met. See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006).1 It is clear that there were no issues of witness credibility that might have been impacted by the taking of testimony by telephone, and neither party objected to the manner in which those witnesses testified. Under these circumstances, even if it is assumed that the AJ abused her discretion by taking testimony by telephone, the Commission finds that her action would have constituted harmless error.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. 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 order, because the Administrative Judge'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
January 7, 2013
__________________
Date
1 In Louthen, the Commission has promulgated its policy regarding the taking of telephonic testimony in the future by setting forth explicit standards and obligations on its Administrative Judges and the parties. Louthen requires either a finding of exigent circumstances or a joint and voluntary request by the parties with their informed consent. When assessing prior instances of telephonic testimony, the Commission will determine whether an abuse of discretion has occurred by considering the totality of the circumstances. In particular, the Commission will consider factors such as whether there were exigent circumstances, whether a party objected to the taking of telephonic testimony, whether the credibility of any witnesses testifying telephonically is at issue, and the importance of the testimony given telephonically. Further, where telephonic testimony is improperly taken, the Commission will scrutinize the evidence of record to determine whether the error was harmless, as is found in this case.
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Office of Federal Operations
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