01A15187
10-28-2002
Tyree W. Mcafee, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Tyree W. Mcafee v. Department of Transportation
01A15187
October 28, 2002
.
Tyree W. Mcafee,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A15187
Agency Nos. 4994073, 4994008
Hearing Nos. 210-AO-6383X, 210-AO-6495X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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. For the
following reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a Grade 13 Operations Supervisor at
the Federal Aviation Administration's Kankanee Automated Flight Service
Station in Kankanee, Illinois, filed two formal EEO complaints on April
30, 1999 and October 30, 1999, respectively, which were subsequently
consolidated, alleging that the agency had discriminated against him
on the bases of race (African-American) and reprisal for prior EEO
activity when:
(1) the agency failed to select him for the temporary promotion
to the Operations Manager position under Vacancy Announcement
No. AGL-AT-99-0018-38976; and
he was subjected to a hostile work environment when:
on March 24, 1999, complainant's supervisor (S1), the Acting Operations
Supervisor, accused him of arbitrarily changing his schedule on March
22, 1999;
in April 1999, S1 gave him an oral admonishment which was later revoked;
on or about May 26, 1999, S1 demanded to know why he had attached a
nurse's note to his 15-minute sick-leave request form and then threw
the note at him;
on June 15, 1999, he received a note from S1 reminding him to initial
all training reports for his trainee crew while other similarly situated
supervisors were not required to initial their training reports;
on June 21, 1999, he received the Daily Log with a written message
from S1, �Don't put this silly stuff on the log,� in reference to a
log entry he had made;
in June and August 1999, S1 badgered him about updating the position
binders and Standard Operating Procedures even though that was not
his responsibility;
on June 30, 1999 he had a heated dispute with S1 about watch desk
coverage and on July 2, 1999, S1 accused him of insubordination because
of this dispute;
on August 5, 1999, complainant's second-line supervisor (S2) told him
that he must wear a tie when he is the Acting Air Traffic Manager; and
on August 5, 1999, S2 banged his fist violently on his desk yelling at
him because he thought he has given an employee the phone number for
AGL-540; S2 later apologized.
At the conclusion of the investigation, 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.
The AJ found that complainant established a prima facie case of
discrimination on the alleged bases. The AJ further found that
the agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, as to the promotion, S2 stated that he
judged the selectee<1> to be the best candidate for the job because
of his extensive experience as an Operations Supervisor and because
he has performed well as an Acting Operations Manager. S2 further
stated that although complainant had the qualifications he was looking
for in a candidate, he lacked on-the-job experience as an Operations
Supervisor. The AJ concluded that complainant failed to establish, by a
preponderance of the evidence, that the agency's reasons were pretextual.
In so finding, the AJ asserted that although the selectee's review of
complainant's bid package certainly gave the appearance of impropriety,
this does not squarely rebut S2's articulated reason for his selection.
In addition, although complainant had more diversity experience, this
did not necessarily make him more qualified for the job. As to the
hostile work environment claim, the AJ found that complainant failed to
establish that the complained-of actions were motivated by discriminatory
or retaliatory animus, or that the alleged harassment was severe and
pervasive so as to alter the conditions of complainant's employment
or to create an objectively hostile or abusive working environment.
The AJ also assessed each incident listed in issue two applying a
disparate treatment framework, and concluded that none of the incidents
were motivated by discriminatory or retaliatory animus. The agency's
final order implemented the AJ's decision.
On appeal, complainant, through his attorney, restates arguments
previously made at the hearing, in particular that the selectee was
pre-selected for the promotion. In response, the agency restates the
position it took in its FAD, and requests that we affirm its final order.
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.
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, 120 S.Ct. 2097 (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).
Assuming, arguendo, that complainant established a prima facie case
of discrimination, we turn to the agency to articulate legitimate,
nondiscriminatory reasons for its actions. As to the nonselection,
S2 states in his affidavit, that he had the opportunity to personally
observe complainant as an Operations Supervisor and was of the opinion
that complainant was not highly motivated, and that he needed further
development before assuming the responsibilities of the position
in question.<2> See Record of Investigation (ROI), tab F14, at 2.
The selectee, on the other hand, was highly motivated and self-driven,
and his work mentoring and fostering leadership with new supervisors was
impressive. Id. After a review of the record, we concur with the AJ's
conclusion that complainant has failed to establish, by a preponderance
of the evidence, that the agency's reason was pretextual. Even assuming,
arguendo, that S2 pre-selected the selectee as complainant contends,
there is no evidence that discriminatory or retaliatory animus toward
complainant motivated that action.
To the extent that complainant argues that the individual incidents
listed in issue two are separate incidents of disparate treatment
based on race and reprisal, we find that the AJ's findings of no
discrimination as to each incident are supported by substantial evidence
of record. Additionally, taking these incidents as a whole, we find
that complainant has not established that he was subjected to a hostile
working environment. Complainant may sustain a Title VII cause of action
of harassment if the discriminatory conduct was so severe or pervasive
that it created a hostile work environment on the basis of his race or
retaliation. See Harris v. Forklift Systems, Inc., U.S. 17, 21 (1993);
EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). In determining whether or
not a hostile environment violates Title VII, our regulations require
that "...the challenged conduct must not only be sufficiently severe or
pervasive objectively to offend a reasonable person, but also must be
subjectively perceived as abusive by the charging party." EEOC Notice
No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 7. Applying these principles to the facts in this case,
we concur with the AJ's conclusion that complainant did not establish that
S1 was motivated by discrimination in the actions at issue, nor that the
challenged conduct met the requisite level of severity and pervasiveness.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's race. We discern
no basis to disturb the AJ's decision. Therefore, after a careful review
of the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final order.
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
October 28, 2002
__________________
Date
1 The selectee and S1 are the same individual.
2 S2, who is no longer employed at the agency, was not present to testify
at the hearing. However, the AJ found that S2's affidavit sufficiently
set forth a legitimate, nondiscriminatory reason for his selection of
the selectee, and the Commission concurs that the agency has satisfied
its burden.