0120082872
03-10-2011
Michael W. Higgins, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Michael W. Higgins,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120082872
Agency No. 9V1M07167F08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 15, 2008 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a Management Analyst, GS-0343-11, at the Agency's Business Operations Office, 76th Maintenance Wing, Tinker Air Force Base (AFB), Oklahoma City, Oklahoma.
On March 23, 2007, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race (African-American), sex (male), disability (ankle, shoulder, neck and back), and in reprisal for prior EEO activity when:
on January 31, 2007, he received a DD Form 200, Financial Liability Assessment Investigation of Property Loss, where it was determined he be assessed financial liability for loss of government property.
The record reflects that the property loss incident occurred during Complainant's previous assignment as a Program Analyst, at the Agency's Protocol Office, Director of Staff Office, Oklahoma City Air Logistics Center (OC-ALC/DCP), Tinker AFB. In addition to Program Analyst position, Complainant was assigned collateral duties as the Equipment Custodian (EC), in which he was responsible for all information technology (IT) items in his organization's account. One of the duties of the primary EC position was to conduct a joint inventory of IT equipment, together with the individual assuming his collateral EC duties, at least thirty days before leaving the organization. In December 2006, Complainant accepted a promotion into his current position of Management Analyst, effective January 22, 2006. However, Complainant was informed that the report date was contingent upon his completion of inventory, despite the fact that no one had been found to assume his EC duties upon his departure.
After he started the inventory, Complainant requested an extension until February 21, 2006, to give himself sufficient time to complete the inventory due to a number of missing items. Complainant eventually departed for his new assignment without completing the required inventory. Following Complainant's departure, management attempted to conduct an inventory of IT assets. However, due to the number of missing/unaccounted pieces of equipment, the inventory was prolonged while attempts were made to track down the missing items. At the end of the inventory, with at least eighteen pieces of IT equipment still unaccounted for, Complainant's third level supervisor (S3) informed her chain of command of the loss of equipment. On August 24, 2006, a named Colonel was appointed as the Investigating Officer (IO) for a Report of Survey (ROS) to determined what happened to the missing equipment and to determine who was responsible for the $10,636.32 loss of missing equipment. On October 18, 2006, IO completed the ROS and concluded that although Complainant had performed his EC duties poorly, OC-ALC/DCP management had contributed to the loss of equipment due to organizational practices which resulted in poor inventory control. IO recommended a finding of no liability for Complainant due to OC-ALC/DCP's lax accounting procedures, a recommendation with which S3 concurred.
The record reflects, however, the former Commander (FC) of the 72nd Comptroller Squadron rejected IO and S3's recommendation and instead recommended that Complainant and OC-ALC/DPC management staff be held liable for the loss of equipment. The ROS Approving Authority, Vice Commander (VC) disregarded FC's recommendation, however, and assessed liability solely against Complainant in the amount of $1,500. Complainant appealed the results of the ROS to the Vice Director (VD) of OC-ALC/DV, who cleared Complainant of all financial liability for the loss of the IT equipment.
After the investigation of the instant complaint, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On May 15, 2008, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of race, religion, color, disability and retaliation.1 The Agency 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.
Regarding the harassment claim, the Agency found that the evidence in the record did not establish that Complainant was subjected to harassment based on race, religion, color, disability and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
VC stated that the ABV Commander has the final authority to make the final decision on the subject ROS. VC stated, however, the ABV Commander "delegated this to me, so I reviewed the documentation, received advice from [a named Colonel], the JAG, and considered what the liability was." VC stated that IO "made some recommendations on who should be held responsible, but they were not EC. The depreciated value was about ten thousand dollars and I didn't want to send anyone into financial ruin so I only found for fifteen hundred dollars. While I found [Complainant] responsible and liable, I also commented that the organization culture was that some leaders wanted to please by issuing items, but it was still the EC responsibility to make sure the procedures were being followed. [Complainant] should have been controlling the equipment. It seemed like they were working in an ad hoc environment and because of the process [Complainant] did not have, he could not account for items."
Further, VC stated that it was his understanding that Complainant was given an opportunity to come back to his previous shop "to do a more through inventory. [S3] informed me that [Complainant] was told that he could not leave until he did a complete inventory, but left anyway. I felt that this meant to me that he was not taking his responsibility as EC as seriously as he should." VC stated that after he assessed liability solely against Complainant in the amount of $1,500, "there was a decision by [VD] who overturned my decision to hold him financial liable. [VD] signed an undated letter to [Complainant] in which [VD] abolished the fifteen hundred dollar liability." VC stated that during the relevant time, he was unaware of Complainant's race, disability and prior protected activity. VC stated that he was aware of Complainant's sex because of his name. Moreover, VC stated "even if I knew that information, I would have made the same decision. I understand that [Complainant] alleges that [S3] influenced me in my decision, but she did not."
S3 stated that her role in the ROS was to review the results of IO and "determine whether I agreed or disagreed with his conclusions, of which I agreed with his recommendations. [IO's] recommendations were not to have [Complainant] held financially liable for the equipment losses. I don't recall speaking to [VC] in any specificity about the ROS. I have never recommended that [Complainant] be held financial liable."
S3 further stated "regardless of what management may think, the requirements regarding completing an inventory prior to the EC departing for a new position are in the regulation." S3 stated that in the instant case, Complainant was required to complete an inventory before leaving for his new position. S3 further stated that Complainant was directed to complete inventory prior to his departure "but he left without completing it. He then ended having some sort of surgery and was gone from work for a period of time. It took a while for someone else to be appointed EC and for them to do a complete inventory. As [Complainant] did not participate in this, the inventory was very time consuming, as many items could not be found. As I wanted the inventory to be as accurate as possible, the new EC kept working to find as many of the lost items as possible." S3 stated that the delay in completing the ROS was because someone had to step in to try to locate the missing equipment. S3 stated that she did not discriminate against Complainant based on his race, sex, disability and prior protected activity. Moreover, S3 stated she does not recall Complainant "complaining to me that he was working on a hostile work environment. I've only become aware of this allegation through this EEO complaint."
On appeal, Complainant states that he was the only person that was recommended to be held financial liable, and "there were no such recommendation made to the alternate equipment custodian or his assistant for their roles with the missing equipment though they had equal responsibility. Clearly [Complainant] was treated differently than any other employee or management official within his work area or chain of command. [Complainant] was the only black male in an organization of predominately white females, his disparagingly treatment was a direct result of those two characteristics."
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (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); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above. Neither during the investigation nor on appeal has Complainant produced evidence that these proffered reasons were a pretext for unlawful discrimination and retaliation.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should 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).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment.
Complainant, on appeal, has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
March 10, 2011
__________________
Date
1 For purposes of this analysis, we assume without finding that complainant was a qualified individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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