Virgil E. Mathis, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionDec 20, 2001
01993920 (E.E.O.C. Dec. 20, 2001)

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.