01993920
12-20-2001
Virgil E. Mathis, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Virgil E. Mathis v. Department of the Air Force
01993920
12-20-01
.
Virgil E. Mathis,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01993920
Agency No. AR000990323
DECISION
INTRODUCTION
On April 12, 1999, Virgil E. Mathis (complainant) initiated an appeal to
the Equal Employment Opportunity Commission (EEOC or Commission) from
the final decision (FAD) of the Department of the Air Force (agency),
concerning his 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. This appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
ISSUES PRESENTED
Complainant claims that he was discriminated against on the bases of
race (Black) and color (Black) and was subjected to a hostile work
environment when:
from 1991 through April 3, 1997, complainant performed higher graded
duties without compensation or recognition;
on January 1 and 3, 1997, complainant's supervisor (the Supervisor)
checked entries made by complainant on his subordinates' time and
attendance records;
on January 22, 1997, the Supervisor relieved him of his duties over
three shops and moved him to a location where he could be observed;
on January 27, 1997, the Supervisor made him repeat the Civilian Personnel
Management Course;
in October 1996, the Supervisor appointed another person as the acting
alternate supervisor rather than complainant;
on February 28, 1997, complainant discovered that management detailed
other employees to Electrical Equipment Repairer Foreman, WS-2854-10,
positions; and
on March 3, 1997, the Supervisor questioned complainant's authority
to schedule three employees to attend Computer Security & Back Injury
Prevention Training.
BACKGROUND
During the relevant time, complainant was employed as an Electrical
Equipment Repairer Foreman, WS-2854-09, in the Aerospace Equipment
Management Directorate at Kelly Air Force Base, Texas. Complainant
believed that his position should have been upgraded to the WS-10
level. He cited the following factors as proof that his supervisory
responsibilities merited the increase in grade level: he supervised
employees in three different career series; the agency required that he be
knowledgeable of duties performed in each of those three career series;
and he was required to perform duties in the Battery Shop associated
with environmental issues.
The record reflects that, in October 1996, the Supervisor assigned
a lower graded employee, WS-7, rather than complainant, to serve as
the second alternate acting supervisor in the Supervisor's absence.
During the pay period covering December 22, 1996 through January 4,
1997, the Supervisor questioned complainant about leave taken by one
of his employees. Complainant asserted that other supervisors were
not similarly questioned. On January 22, 1997, the Supervisor relieved
complainant of his duties over three shops and moved him from Building
331 to Building 329. Complainant contended that the Supervisor moved
him in order to watch him more carefully and provide another employee
the opportunity to gain additional experience. On January 27, 1997,
the Supervisor required complainant to attend the Civilian Personnel
Management Course (the Course). Complainant asserted that the Supervisor
did not require his peers to repeat the Course. On February 28, 1997,
complainant discovered that management detailed other employees to the
Electrical Equipment Repair Foreman position as WS-2854-10. He noted
that one employee was detailed to the position through use of electronic
mail, rather than official means. Finally, the record indicates that,
on March 3, 1997, the Supervisor questioned complainant's judgment when
complainant scheduled three employees to attend Computer Security & Back
Injury Prevention Training (the training). Complainant contended that
the Supervisor commented to other employees, �Virgil has messed up again.�
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on April 3, 1997.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and informed of his right to request a
hearing before an EEOC Administrative Judge (AJ) or, alternatively, to
receive a final decision by the agency. Complainant first requested a
hearing.<1> He later withdrew his request by letter dated January 20,
1999, and requested a FAD.
In its final decision, dated April 5, 1999, the agency assumed
arguendo that complainant had established a prima facie case of race
and color discrimination. The agency then determined that it had
articulated legitimate, nondiscriminatory reasons for its actions,
and that complainant had failed to show that the agency's reasons
were pretextual. With respect to complainant's claim of hostile work
environment, the agency determined that complainant failed to show that
the alleged actions were based on race or color, were sufficiently
severe or pervasive to affect a term or condition of employment, had
the purpose or effect of unreasonably interfering with his performance,
and/or had the purpose or effect of creating an intimidating, hostile,
or offensive work environment.
On appeal, complainant contends, among other things, that: (1) his
duties, as compared to those of his peers, were the most complex; (2)
the Supervisor admits in his statement that he did not question the
complainant's peers about sending their subordinates to the Computer
Security & Back Injury Prevention Training; (3) he received high
evaluations from his subordinates; (4) EEO complaints had not been
filed against him when he was sent to the Course; and (5) the Course
was not needed for remedial purposes because he had always received
good appraisals. The agency makes no new contentions on appeal.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part 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 case 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.
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. 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. 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. United States
Postal Serv. Bd. 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 Serv.,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of this decision, the Commission assumes that complainant
established a prima facie case of race and color discrimination.
Therefore, the burden shifts to the agency to articulate legitimate,
nondiscriminatory reasons for its actions. With respect to issue 1, the
Supervisor averred that complainant did not perform the duties required
in a higher grade until after his temporary detail to a higher graded
position on March 4, 1997. Complainant's former supervisor stated
that he did not request reclassification of complainant's position
because he feared that reclassification could jeopardize complainant's
employment. Moreover, the agency noted that complainant never requested
a position audit. With respect to issue 2, the Supervisor testified
that he questioned sheet entries for the subordinates of all his other
supervisors. With respect to issue 3, the Supervisor asserted that
he removed complainant from his supervisory duties in order to broaden
complainant's experience and provide more guidance to complainant, but
not to keep watch over him. With respect to issue 4, the Supervisor
stated that he sent complainant to the Course to improve complainant's
supervisory abilities because complainant lacked strong supervisory
skills. With respect to issue 5, the Supervisor averred that he named
the lower graded employee as his second alternate based on the other
employee's knowledge and physical proximity to the work area.<2> With
respect to issue 6, the Supervisor asserted that none of the individuals
who were detailed were afforded more of an opportunity than complainant.
He noted that complainant was also detailed to a higher graded position.
Finally, with respect to issue 7, the Supervisor stated that he questioned
complainant's decision to schedule three employees to attend training at
the same time because he believed such scheduling to be counterproductive.
Since the agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden returns to complainant to demonstrate
that the agency's articulated reasons were pretext for discrimination.
With respect to issue 1, complainant contends that his duties, as compared
to those of other supervisors, were the most complex, and therefore, he
should have received an increase in grade to the WS-10 level. However,
the record indicates that complainant did not complain about the grade
of his position nor did he request an audit. Furthermore, a position
classification specialist testified that a position could be upgraded if:
(1) outside management changed the workload and the work assignments;
or (2) the incumbent possessed the skills, knowledge, and abilities that
other employees did not possess, i.e., �impact of the person procedures.�
He noted that the agency's records indicated that a Federal Wage System
position had not been upgraded through impact of the person procedures.
Complainant failed to show that he met either of the agency's criteria.
With respect to issue 2, the Supervisor averred that he questioned sheet
entries for the subordinates of all his other supervisors and checked the
entries several times a week. We note that another supervisor averred
that she too was questioned about production hours and employee time
and attendance.
With respect to issues 3 and 4, the Supervisor averred that he relocated
complainant to allow complainant to perform the duties of a WS-10
position and sent complainant to the Course to improve complainant's
supervisory abilities. Complainant contends that he received good
appraisals from his supervisors and high evaluations from his employees.
We note, however, that complainant's former supervisor asserted that
complainant's evaluations had been somewhat inflated. Complainant also
argues that EEO complaints had not been filed against him when he was
sent to the Course. The record reflects, however, that the Supervisor
was aware of complainant's subordinates expressing dissatisfaction with
complainant's management style. For example, the record reveals that
one of complainant's subordinates, a WG-5, performed WG-10 work without
supervision; complainant had been cautioned about this practice; and
the employee filed a grievance on the matter.
With respect to issue 5, the record reflects that, when a lower graded
employee was placed as the Supervisor's second alternate, the employee
worked in Building 329, where he would be acting supervisor. In contrast,
complainant worked in Building 331 which was one and a half blocks away
from Building 329.
With respect to issue 6, complainant expresses concerns that management
detailed other employees to Electrical Equipment Repairer Foreman, WS-10.
The record reflects that the employees detailed to that position held a
WS-10 position or higher prior to their details. We note that management
also detailed complainant to a WS-10 position.
Finally, with respect to issue 7, complainant contends that the Supervisor
admitted in his statement that he did not question complainant's peers
about the manner in which they scheduled training. While the Supervisor
did not question other supervisors regarding the specific training
at issue, the Supervisor averred that he told other supervisors to
reschedule training for their subordinates on other occasions because
of his concerns relating to productivity.
Complainant's assertions that the agency acted out of discriminatory
animus are insufficient for him to prevail absent evidence that an
illegal motive existed. For these reasons, we find that complainant
failed to show that the agency's articulated reasons were pretext for
race or color discrimination. Therefore, after a careful review of the
record, we find that complainant has failed to prove that the agency
acted on the bases of race or color discrimination with respect to his
claim of disparate treatment.
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. Garretson
v. Department of Veterans Affairs, EEOC Appeal No. 01945351 (April 4,
1996); McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985).
The Commission's Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June
18, 1999) identifies two types of such harassment: (1) harassment
that results in a tangible employment action; and (2) harassment that
creates a hostile work environment. Based on the facts of this case,
we will analyze this matter as an allegation of harassment that creates
a hostile work environment.
In order for harassment to be considered as conduct in violation of the
regulations that the Commission enforces, it must be pervasive or severe
enough to significantly and adversely alter the conditions of the victim's
employment and create an abusive working environment. Harris v. Forklift
Systems, Inc., 114 S.Ct. 367 (1993). The conduct in question is evaluated
from the standpoint of a reasonable person, taking into account the
particular context in which it occurred. Highlander v. K.F.C. National
Management Co., 805 F.2d 644 (6th Cir. 1986). The Commission notes
that unless the conduct is severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
In the present case, the Commission finds that complainant has not
established that he was harassed on the bases of his race or color. We do
not find that the incidents identified by complainant were severe enough
to significantly and adversely alter the conditions of complainant's
employment. Furthermore, there is no indication in the record that the
Supervisor's actions were motivated by a discriminatory animus based
on complainant's race or color. Instead, the record reflects that
the Supervisor and complainant's former supervisors expressed concerns
that complainant lacked supervisory skills, especially as it related to
disciplining his employees, and that he appeared to treat some employees
more favorably than others. Accordingly, the Commission finds that
complainant has failed to prove that he was subjected to harassment on
the bases of his race or color.
CONCLUSION
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in the decision, we AFFIRM the
agency's final decision.
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
_____12-20-01_____________
Date
1 The record reveals that complainant's complaint was subsumed into
a class complaint before an AJ. The class was ultimately denied
certification.
2 The record reflects that complainant did not work in the same building
as the employee named as a second alternate.