0120060124
01-24-2007
Richard W. Cacini, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Richard W. Cacini,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01200601241
Agency No. 5-04-5048
Hearing No. 310-2004-00484X
DECISION
Complainant filed an appeal from the agency's 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 accepted
pursuant to 29 C.F.R. � 1614.405(a).
During the relevant time, complainant was employed as a Transit Safety
and Security Specialist at the agency's Research and Special Programs
Administration (RSPA), Transit and Safety Institute (TSI) in Oklahoma
City, Oklahoma.
On February 9, 2004, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On April 19, 2004, complainant filed the instant formal complaint.
Therein, complainant claimed that he was the victim of unlawful employment
discrimination in reprisal for prior EEO activity when:
1. since 2003, he was subjected to a hostile work environment when:
(a) in September 2003, his third-level supervisor placed his award in
his chair because he did not want to interact with him;
(b) his overtime for December 6, 2003 was disapproved in October and
December 2003;
(c) in December 2003, someone opened a letter addressed to him;
(d) his travel was disapproved in January 2004;
(e) he was not allowed to attend three meetings in January and March
2004;
(f) he was denied training in February 2004;
(g) he was denied administrative leave in April 2004; and
(h) he was denied the opportunity to assist Homeland Security with an
exercise in April 2004;
2. on January 14, 2003, he was given a letter of admonishment;
3. in November 2003, he was not selected for the position of Division
Manager of Transit Safety Division (DT1); and
4. in May 2004, he was not selected for the position of Hazmat Division
Manager under Vacancy Announcement AAC-DTI-04-030-72335. 2
On May 7, 2004, the agency issued a partial dismissal. Therein, the
agency accepted claims 1 and 4 for investigation. However, the agency
dismissed claims 2 and 3 on the grounds of untimely EEO Counselor contact,
pursuant to 29 C.F.R. � 1614.107(a)(2).
At the conclusion of the investigation of claims 1 and 4, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a decision finding no discrimination concerning claims 1 and 4.
In his decision, the AJ found that complainant failed to establish
a prima facie case of reprisal discrimination. Specifically, the
AJ found that complainant failed to establish a nexus between the
alleged discriminatory incidents and his prior protected activity.
The AJ nevertheless found that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext for discrimination.
Regarding the harassment claim, the AJ noted that complainant claimed
that he was subjected to a hostile work environment over virtually
all aspects of his dealings with his second-level supervisor (S2) and
third-level supervisor (S3) over a period of ten years concerning his
day-to-day working conditions, travel, training, awards, overtime, leave,
discipline and non-selections. The AJ further noted that it was apparent
that complainant "has had a somewhat rough time of it" for a period of
several years. The AJ noted that complainant's current relationship
with S2 and S3 is a "contentious" relationship. The AJ found, however,
that complainant failed to provide evidence that he was subjected to
harassment that was sufficiently severe or pervasive so as to alter the
conditions of his employment and create a hostile work environment.
On September 6, 2005, the agency issued a final order wherein it
implemented the AJ's decision finding no discrimination concerning claims
1 and 4.
The record contains the following testimony and documentation regarding
claims 1 and 4.
Regarding claim 1(a), complainant's third-level supervisor (S3)
stated that he either put complainant's award on his desk or on
complainant's chair. S3 further stated that all award recipients,
including complainant, were recognized "in RSPA Results, All-Hands
meetings, and a picture was taken with all recipients." S3 stated that
it took months before the office received the awards. S3 stated that
when the office received the awards, he "took them around and gave them
to everyone that was there. If they were gone, I placed the award on
the individual's desk."
Complainant's second-level supervisor (S2) stated that complainant
was recognized for his involvement in the Passenger Screening Training
Curriculum Team Award. S2 stated that complainant was also recognized
"in RSPA Results Volume 1, Issue 4 edition dated Winter 2002-2003,
also at Staff Meetings, and after the awards were received, a photo of
all recipients was taken and placed on the bulletin board." S2 stated
"approximately a year later, we received the actual award plagues and
[S3] took the plagues to each person that was there and gave it to them.
For those employees that were not there, he left the award on their
desks and/or their chairs."
Complainant's first-level supervisor (S1) stated that she received her
award in the same manner as complainant. Specifically, S1 stated that
on one occasion when she reported to work, she discovered her award in
her chair. S1 further stated that she complained to S3 "because I felt
it was an important award and we should have been presented it in front
of our peers." S1 stated that S3 "felt that because it had been such
a long time since the award was announced to the time that we actually
received the plaque, he did not feel that he needed to mention it again
because he had mentioned it in an all-hands meeting." S1 stated that
she suggested to S3 that all recipients, including complainant, should
"have a photograph taken and placed in the glass case in the hallway,
which he did." Furthermore, S1 stated "I don't believe that [S3] placed
mine and [Complainant's] plaque in our chair because we have participated
in the EEO process."
Regarding claim 1(b), S1 denied disapproving complainant's request
for overtime for a meeting with the Transit Safety Administrative in
December 2003. Specifically, S1 stated that she changed complainant's
request for overtime to compensatory time. S1 stated that at that time,
she thought complainant requested compensatory time instead of overtime.
S1 further stated that S2 "later advised me that they normally give
compensatory time instead of overtime because of budget constraints."
S1 stated that complainant was the only course manager that had requested
overtime, and that most course managers "understand they will receive
compensatory time."
The record reflects that S2 stated that complainant benefited from
receiving compensatory time instead of overtime "because he exceeded
GS-10, Step 2 and would only be paid at that grade." S2 further stated
that complainant was not harmed by S1's decision.
Regarding claim 1(c), S1 stated that after complainant complained that
someone opened his mail, she conducted an investigation "to see if DTI-10
and FAA [Federal Aviation Administration] mailroom might have opened
the mail." S1 further stated that she provided an identified agency
official with a memorandum concerning her inquiry of complainant's claim.
Furthermore, S1 stated "I think someone opened his mail by mistake and
did not want to admit it."
S2 denied opening complainant's mail. S2 further stated that S1 inquired
into complainant's claim that someone opened his mail, but could not
determine who opened his mail. S2 stated that all mail goes through the
FAA mailroom for distribution. S2 stated that the mailroom "delivers
the bulk mail to our operations support division, and our staff will
sort it from that point." S1 stated that she provided an identified
agency official with the memorandum from S1 concerning her inquiry into
complainant's claim.
The record further reflects that S3 stated that he had no knowledge if
someone opened complainant's personal business mail in December 2003.
S3 further denied opening complainant's personal business mail.
Regarding claims 1(d) and (e), S1 stated that complainant's request
to travel and speak at the National Safety Council on January 7, 2004
was denied because its sponsor, the Federal Transit Administration,
felt that "the council was not directly related to transit safety and
was not justifiable expense."3 S1 stated that she denied complainant's
request to speak at a Rail Conference on April 16 - 20, 2004 because she
needed him present for a course evaluation. Specifically, S1 stated
that a course that complainant managed "was to be evaluated by the
University of Oklahoma and I needed him here." Further, S1 stated that
when complainant made a request to attend a Risk Manager's meeting in
Chicago, Illinois, on June 20 - 23, 2004, she informed complainant that
she would not approve it because "he was already approved to travel to
Miami, Florida in June." S1 further stated that she told complainant
"attending two conferences was a little too much for one month."
S1 stated that she also disapproved travel for other course managers
"based on funding, budgeting constraints, and availability to work."
Furthermore, S1 stated that during the relevant time complainant had
attended more conferences than his colleagues.
Regarding claim 1(f), S1 stated that she initially approved complainant's
request to attend the contractor Office Technical Representative
(COTR) training on February 10, 2004. S1 stated, however, she later
disapproved complainant's request. S1 stated that the COTR training
"was not necessary for [complainant's] position, it was a 'nice to know'
type of training."
S2 stated that complainant's request to attend the COTR training was
denied because "he was not assigned this function nor was his supervisor
planning to assign him those duties." S2 further stated that other
employees also requested to attend the same training and that she denied
an employee's request "because the training would serve no value to the
employee if they were not assigned the COTR function." S2 stated "in
addition, this employee could be occupying a training quota for people who
truly needed the training." S2 stated that one employee attended the COTR
training because "he is responsible to oversee automation contractors."
Regarding claim 1(g), S1 stated that she denied complainant's
administrative leave on April 15, 2004 to assistant with the air show for
June 17 - 19, 2004 in accordance to FAA policy. S1 stated that according
to FAA policy, any employee who "volunteers to work at the air show must
use [his or her] own time unless they were official representing their
organization." S1 stated that complainant "was not representing the
agency and it was not an official function of our division." S1 stated
that she sough guidance from FAA, S2 and S3; and that they mentioned
that complainant could take annual leave and "could give him 59 minutes
of administrative leave for meetings." S1 stated that when complainant
"attends meetings, I have approved 59 minutes of administrative leave."
The record further reflects that S2 stated that complainant's request
for administrative leave to assist with the air show was denied "because
his involvement was not directly related to TSI's operational mission."
Specifically, S2 stated that complainant had volunteered to work security
at the air show which was not part of TSI's mission. S2 stated, however,
"[S1] did approve 59 minutes of administrative leave for one day, which
is within her authority."
Regarding claim 1(h), S1 stated that she did not deny complainant the
opportunity to participate a Homeland Security exercise at Fort Gruber.
S1 further stated "I approved annual leave so he could participate in
the exercise." Specifically, S1 stated that she explained to complainant
that the Homeland Security exercise "was similar to the air show, and
that he was not representing TSI."
Regarding claim 4, S2 stated that she was the selecting official for
the subject Hazmat Division Manager (DM) position. S2 stated that five
candidates, including complainant, applied for the subject position,
and were determined to be qualified for the subject position. S2 stated
that she established a panel of three agency officials. S2 stated
that the panel interviewed and scored the candidates individually.
S2 stated that the top three scoring candidates (overall score of 221,
191 and 172 respectively) were referred to her for a second interview and
consideration. S2 further stated that complainant was not referred to
her for a second interview because he was ranked fourth with an overall
score of 140.
Further, S2 stated that the selectee "has demonstrated managerial
experience at TSI working as a manger in Hazmat, he has the Transit
experience, and was recognized by the Federal Transit Administration
as being one of the top applicants they would want to be placed in a
staff position." S2 stated she also chose the selectee for the subject
position was because its sponsor, the Federal Transit Administration
suggested that the selectee would be the appropriate individual for
the position because "he had served in that division before and he had
credibility with them."
One of the three panelists (P1) stated that all candidates, including
complainant, were rated and scored "by a predetermined numbered
rating system." P1 further stated that the two identified high ranking
candidates' interviews were the best because of their work experience.
Specifically, P1 stated that one candidate was an experienced Hazmat
Instructor while the other was a Program Manager. P1 stated that
during his interview, complainant "talked about how good he was in
response to each question, but was unable to provide any evidence or
documentation to back up his claims." P1 stated that when complainant
"couldn't respond to questions of a technical nature, he made answers up
rather than acknowledging he didn't know. His made up answers weren't
anywhere close to being correct."
Regarding complainant's assertion that S2 and S3 influenced the panel
to ensure that he was not selected for the subject position because of
his prior protected activity, P1 denied this assertion.
S3 stated that he was the concurring official concerning complainant's
non-selection. S3 further stated that complainant did not make the second
interview because he "did not score high enough for a second interview."
Furthermore, S3 stated that complainant's prior protected activity was
not a factor in his concurrence with S1 to choose the selectee for the
subject Hazmat DM position.
On September 6, 2005, the agency issued a final order implementing the
AJ's finding of no discrimination, which is the subject of the instant
appeal.
As an initial matter, the Commission notes that two witnesses 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).4 However,
because the facts of this case pre-date Louthen, the Commission will
assess the propriety of taking the testimony of some witnesses by
telephone, considering the totality of circumstances. Here, it is
unclear whether exigent circumstances existed. However, it is clear
that there were no issues of witness credibility that might have been
impacted by the taking of this 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 his discretion
by taking testimony by telephone, the Commission finds that his action
would have constituted harmless error.
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.
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).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not shown that
the agency's articulated reasons were a pretext for discrimination.
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 patterned or pervasive. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)).
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. 01970727 (September 15, 2000). A single incident or group
of isolated incidents will 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. Harassment is
actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). 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).
Complainant failed to show that he was subjected to a hostile work
environment because the record does not support a determination that the
alleged incidents were sufficiently severe or pervasive to constitute
a discriminatory hostile work environment.
Accordingly, the agency's final order implementing the AJ's finding of
no discrimination concerning claims 1 and 4 was proper and is AFFIRMED.
Claims 2 and 3
Complainant claimed that he was discriminated against on the basis
of reprisal for prior EEO activity when in November 2003, he was not
selected for a DT1 position (claim 2); and on January 14, 2003, he was
given a letter of admonishment. In its May 7, 2004 partial dismissal,
the agency dismissed claims 2 and 3 pursuant to 29 C.F.R. � 1614.107(a)(2)
on the grounds of untimely EEO Counselor contact.
The alleged discriminatory events occurred in November 2003 and
January 14, 2003, but complainant did not initiate contact with an EEO
Counselor until February 9, 2004, which was beyond the forty-five (45)
day limitation period. On appeal, complainant presented no persuasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact. The agency properly dismissed claims
2 and 3 on the grounds of untimely EEO Counselor contact.
Accordingly, the agency's dismissal of claims 2 and 3 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
January 24, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 Ease of reference, the Commission has re-numbered complainant's claims
as claims 1 - 4.
3 We note that complainant claimed that between January and March
2004, he was not allowed to attend three meetings. In her affidavit,
S1 determined that the alleged discriminatory incidents occurred in
January 2004, April 2004 and June 2004. The disparity in dates does
not affect our disposition of this claim.
4 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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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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