0120082973
12-11-2008
Alfred Ackley, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Alfred Ackley,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120082973
Hearing No. 540-2007-00065X
Agency No. 8L1M06023
DECISION
Complainant filed an appeal from the agency's final order,1 dated June 18,
2008, 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 deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
During the relevant time, complainant worked as a Pneudraulic Systems
Mechanical Supervisor, WS-8225-10, for the agency's 309th Maintenance
Wing, 309th Commodities Group, Wheels and Brakes Section (309 CMXG/MXDPEA)
at Hill Air Force Base in Utah. Believing that he was subjected to
unlawful discriminatory harassment, complainant contacted the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint based on reprisal2
alleging as follows:
(1) On January 18, 2006, [Business Unit Chief (hereinafter "RMO-BUC")]
questioned him regarding another supervisor's employee's non-attendance
at a Business Process Improvement (BPI) meeting;
(2) On January 18, 2006, RMO-BUC by-passed the chain of command and
questioned Brake Crew employees regarding production issues;
(3) On January 19, 2006, RMO-BUC inquired of him as to why he (RMO-BUC)
had received several different responses from employees regarding a
production related matter;
(4) On February 13, 2006, [Production Unit Chief (hereinafter "RMO-PUC")
was appointed by [identified management official BP] as the Brake Crew
Team Leader for the Visionary Meetings rather than the complainant;
(5) On February 17, 2006, complainant was told by RMO-PUC to stay out
of the Brake Work Center during a Congressional Tour while a Wage Leader
conducted the Brake presentation; and,
(6) For the period of April 1, 2005 through March 31, 2006, complainant
received a lower rating on his Air Force (AF) Form 860A, Civilian Rating
of Record.
Thereafter, complainant amended his complaint twice to include additional
claims:
(7) On or about April 13, 2006, management failed to take appropriate
action against [an identified employee (hereinafter "MB")] for threatening
to chase the complainant down and beat his head in with a hammer.
(8) On or about April 21, 2006 RMO-BUC told complainant that if he was
a real supervisor he could work with [MB] and make him a good employee.
(9) On June 5, 2006, [Production Section Chief (hereinafter "RMO-PSC")]
issued complainant a written directive instructing him to address
issues/concerns through his immediate chain-of-command prior to addressing
them to upper echelon.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and over the complainant's
objections, issued a decision without a hearing on April 28, 2008.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
The AJ noted that the claims "involve decisions and actions which arise
from management's administration of the workplace," such as instructing
employees, following the proper chain of command, and conducting
performance evaluations. He reasoned that such events "do not generally,
in and of themselves, constitute [a] tangible employment action. . . ."
Nonetheless, even assuming that complainant was aggrieved by the alleged
events, the AJ concluded that complainant was unable to establish that
he was treated any differently than similarly situated co-workers without
prior EEO activity.
Specifically addressing each claim, the AJ found that management proffered
legitimate, non-discriminatory reasons for its actions. In claim 1,
management explained that complainant was directed to hold a meeting of
the BPI and LEAN teams; however, complainant did not attend the meeting
but instead sent another employee to represent him. When that employee
was the only one in attendance, RMO-BUC asked complainant why the others
were not there. Additionally, the AJ noted that complainant was not
disciplined nor suffered any adverse action as a result. Similarly,
with respect to claims 2 and 3, RMO-BUC went to the Brake Shop to inquire
about production problems. Since complainant was not there, RMO-BUC
spoke with several employees, who gave different answers. Consequently,
the next day, RMO-BUC asked complainant why the employees provided
varied answers about the problem. As to claim 4, the AJ reasoned that
complainant was not aggrieved, because he was "involved extensively" with
LEAN and Visionary training, and permitted to attend the training with
the two new supervisors. Management explained, with respect to claim
5, that other managers were also asked to stay out of the Brake Work
center during the Congressional visit. The delegation wanted to speak
with workers, not management. In claim 6, complainant alleged that his
lower performance rating was discriminatory. The AJ, however, found that
the rating simply reflected complainant's deficiencies. For example,
complainant did not adapt to new situations and procedures, had poor
communication skills, was unwilling to work beyond basic requirements,
failed to complete tasks, and had poor working relationships with others.
Complainant also alleged, in claim 7, that the agency failed to respond
appropriately to an employee's threatening remark. Management explained
that the comment was made during the mediation of a grievance, and when
it learned about the remark, the employee was notified that any threats
of violence would not be tolerated. As to the remark made the following
week, claim 8, about complainant's ability to manage the employee, the AJ
reasoned that the incident did not result in a harm nor would it dissuade
an individual from using the EEO process. Lastly, with respect to claim
9, the agency stated that it places a strong emphasis on following the
regular chain of command and complainant was not treated any differently
than any other supervisor.
The AJ found that complainant failed to provide evidence of pretext.
Consequently, he concluded that complainant did not prove that he was
subjected to discrimination based on his prior EEO activity.
On June 18, 2008, the agency issued a decision fully implementing the AJ's
finding of no discrimination. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in making a summary
judgment decision. He contends that the record was incomplete, lacking
interviews from similarly situated employees and witnesses he listed.
According to complainant, the agency's articulated reasons were merely
"attempted persuasion" and were not supported by documentation. Further,
complainant contends that RMO-BUC was not his first level supervisor,
and he should not have been rated by RMO-BUC. Complainant requests that
the Commission reverse the AJ's decision.
In response, the agency reiterates the reasoning set forth in the AJ's
decision. Further, the agency challenges some of the specific arguments
presented by complainant on appeal. For example, as to complainant's
assertion that it was improper for RMO-BUC to rate him, the agency
states that RMO-BUC was the proper official and he even obtained input
from complainant's previous supervisors before issuing his evaluation.
Complainant, notes the agency, did not dispute his deficiencies nor
present evidence suggesting that he would have received a higher rating
absent his prior EEO activity. With respect to claim 7, the agency
maintains that the employee was counseled and noted that complainant
did not discipline the individual himself and even gave him an award.
The agency contends that it provided legitimate reasons for its actions;
complainant was not treated any differently than similarly situated
employees; and that the alleged events did not constitute a hostile
work environment. The agency requests that we affirm the AJ's decision
and its final order.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
Construing the evidence of record in the light most favorable to
complainant, we nonetheless find that no genuine issue of material fact
exists. Accordingly, the determination of the AJ to issue a decision
without a hearing was proper.
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).
In the instant case, the Commission finds that the agency has provided
legitimate, non-discriminatory reasons for its actions. As noted by
the agency, many of the claims (claims 1, 2, 3, 5, 8, and 9) simply
describe usual workplace incidents where agency officials are managing
their employees.
With respect to complainant's lower performance rating, claim 6, the
record does not establish that the rating was discriminatory. The rater,
RMO-BUC, attested that he made an initial assessment and also obtained
the recommendations of the managers that supervised complainant during
the rest of the rating period. According to RMO-BUC complainant delayed
getting this done, misrepresented management's instructions to his
employees, and wanted to use the maximum response to any disciplinary
situation. One of complainant's supervisors stated plainly that "I did
not feel [complainant] had performed well," noting that he would not
follow directions, or would delay required tasks.
While complainant attempts to establish pretext by arguing that RMO-BUC
should not have been the individual to issue the rating, the record
shows otherwise. The Director of the squadron attested that since
complainant changed jobs in January 2006, RMO-PUC had not been his
supervisor for the requisite 90 days. His replacement also had not
been there a sufficient amount of time, so RMO-BUC was designated to
be the rater to avoid delaying the rating. According to the Director,
complainant had problems with his supervisory performance while in another
shop, and the problems continued with his work in the Brake shop.
In claim 4, the record shows that although complainant was initially not
selected to attend the Visionary meetings, once he expressed his desire
to be part of the process he was included. Further, the record indicates
that complainant was not tasked with the assignment at the start because
management was concerned about overextending him. There is no evidence
that the initial decision not to include him in the program was reprisal
for his previous EEO complaint.
With respect to the agency's response to an employee's threatening
comment, claim 7, RMO-PSC and RMO-BUC attested that the matter was
investigated and concluded that there was no cause for concern.
One manager noted that he was concerned that complainant may have
problems with insubordination by the employee, but complainant never
initiated any disciplinary actions and even recommended the individual
for a spirit award.
As noted above, complainant claimed that the alleged events constituted
discriminatory 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. McKinney v. Dole, 765 F.2d 1129, 1138-1139
(D.C. Cir. 1985). 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
[and the Rehabilitation Act] must be determined by looking at all 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, 510 U.S. 17
(1993).
To establish a prima facie case of hostile environment harassment,
a complainant must show that: (1) s/he is a member of a statutorily
protected class; (2) s/he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
The Commission finds that the alleged events did not create an
intimidating, hostile or offensive work environment. Additionally,
complainant has failed to establish any nexus between the incidents and
his prior EEO activity. Consequently, we find that the AJ's decision
finding no discrimination was proper.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
December 11, 2008
Date
1 The record indicates that, in accordance with EEOC regulations,
complainant filed his appeal on June 16, 2008, forty calendar days after
he received the EEOC Administrative Judge's decision dated April 28, 2008.
See 29 C.F.R. 1614. As noted above, the agency's final order was issued
two days after complainant's appeal.
2 Complainant also cited race in his formal complaint, but later withdrew
the basis.
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0120082973
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036