Fort Hood was a racist hotbed of trouble

Milton Lewis, Jr,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 01200635201

Hearing No. 550-2006-00016X

Agency No. ARMCCOY05JUN0064

DECISION

Complainant filed an appeal from the agency’s April 17, 2006 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.  For the

following reasons, the Commission AFFIRMS the agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

a Heavy Mobile Equipment Mechanic Inspector, WG-5803-10 at the agency’s

Fort Hunter-Liggett facility in Jolon, California.  On August 16, 2004,

complainant filed an EEO complaint alleging that he was discriminated

against on the bases of race (African-American) and in reprisal for prior

protected EEO activity under Title VII of the Civil Rights Act of 1964

when:

(1) In early 2004, complainant’s supervisor used a racial slur

against him;

(2) In early 2004, complainant found a rope tied in a noose that

was hanging above his tool box with a picture of Osama bin Laden hanging

from a tree;

(3) On June 3, 2004, the Fort Hood agency attorney telephoned

complainant’s supervisor about complainant’s availability to appear at an

OCI investigation, which jeopardized his employment when his supervisor

learned of his past EEO complaint;

(4) On June 4, 2004, complainant learned that his one-year employment

would not be extended for an additional year; and

(5) Since June 4, 2004, complainant was subjected to a hostile work

environment after being physically assaulted by a co-worker.

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 and the AJ held a hearing on January 9, 2006, and

issued a decision on March 31, 2006.

In her decision, the AJ found that claims (1) (racial slur) and (2)

(picture and noose), were presented for EEO counseling beyond the 45-day

time limit for initiating the EEO complaints process, and were therefore,

untimely.

The AJ further found that with respect to claim (3) (telephone call

to complainant’s supervisor), that it was necessary for either the

agency’s counsel or complainant to notify complainant’s supervisor of

complainant’s need to appear at the hearing of his prior complaint and

that nothing inappropriate occurred as complainant alleged.  Moreover,

the AJ found that complainant did not show that he was harmed by the

notice to his supervisor.

With respect to claim (4) (position not extended), the AJ found

that the evidence showed the decision to not extend complainant’s

term employment because he did not possess a Commercial Driver’s

License (CDL) with appropriate endorsement for air brakes was made by

complainant’s supervisors in the months before his June 2004 termination.

While complainant claimed he did possess a CDL in December, complainant

did not dispute that he did not have an endorsement for air brakes until

after he was told his term position would not be extended.   The AJ

observed that other employees had been separated from employment for

failure to obtain proper licensing.

With respect to claim (5), the AJ noted that complainant’s statements

regarding an incident in which complainant was either hit or brushed or

pushed by another employee with whom complainant had been inspecting a

vehicle, were inconsistent and insufficient to establish harassment based

on complainant’s race or in reprisal for prior protected activities.

The AJ therefore found that complainant did not establish that race or

reprisal discrimination occurred as alleged in complainant’s complaint.

The agency subsequently issued a final order adopting the AJ’s decision

finding no discrimination.

.

ANALYSIS AND FINDINGS

As an initial matter, we note that it has long been common practice for

AJs to conduct pre-hearing matters by telephone, and to take testimony

by telephone where a witness would otherwise be unavailable to testify.

Louthen v. United States Postal Serv., EEOC Appeal No. 01A44521 (May

17, 2006) (citing Mozee and Bailey v. United States Postal Service,

EEOC Appeals Nos. 01A34265 and 01A34266 (January 10, 2005) (prehearing

conducted by telephone); Freeman v. United States Postal Service,

EEOC Appeal No. 01924204 (September 30, 1993) (witness testimony taken

by telephone); Davis v. Department of Transportation, EEOC Appeal

No. 01883565 (January 18, 1989), req. to reopen, den., EEOC Request

No. 05890471 (November 9, 1989) (witness testimony taken by telephone)).

In the instant case, the testimony of one witness (complainant’s second

level supervisor) was taken by telephone over complainant’s objection.2

Several  credibility determinations were made by the AJ concerning the

testimony of this witness.  However, the record notes that exigent

circumstances required the taking of this witness’s testimony by

telephone.3  The instant hearing was held prior to the Commission’s

decision in Louthen.  We note on appeal, complainant does not renew

his claim that the AJ’s decision to allow the telephone testimony

was improper.  The Commission, applying the principles set forth in

Louthen, finds that the AJ did not abuse her discretion in allowing,

over complainant’s objection, the telephone testimony of one witness

considering the totality of the circumstances.

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.

An AJ’s credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).

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).  Complainant

must initially establish a prima facie case by demonstrating that he or

she 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).  Proof of a prima facie case will

vary depending on the facts of the particular case.  McDonnell Douglas,

411 U.S. at 804 n. 14. 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).  To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency’s explanation is pretextual.  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).

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination.  Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)).  Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case of

reprisal by showing that: (1) he or she engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

he or she was subjected to adverse treatment by the agency; and (4) a

nexus exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

We find no basis to disturb the AJ’s decision on appeal.  We note

that the AJ did not allow the testimony of some witnesses requested by

complainant.  We find that complainant has not shown that these witnesses

were either necessary or relevant to the claims considered at the hearing.

We further find that the AJ correctly determined that claims (1) and

(2), which occurred in “early 2004” or, as the record indicates, perhaps

in late 2003, were untimely presented for EEO counseling in June 18,

2004, well beyond the 45-day time for initiating EEO contact, and that

complainant did not show any harm resulting from claim (3).  We further

concur with the AJ’s finding that complainant did not show that the

agency’s non-discriminatory reasons for failing to extend his employment

(claim (4)) were pretext.  We find, as did the AJ, that other employees

were also not extended for failing to obtain the proper licensing.

The evidence shows that more likely than not the decision to not extend

complainant’s employment was made months before his separation date in

June 2004, prior to the time that complainant obtained the required

air brakes endorsement for his commercial drivers license.   Lastly,

we find, as did the AJ, that even if the event described in claim (5)

occurred as complainant maintained, nothing in the record indicates

that this incident occurred based on complainant’s race or in reprisal

for complainant’s prior EEO activity. Therefore, there is no timely

discriminatory incident to link the incidents in claims (1) or (2)

to render them timely.

We therefore AFFIRM the agency’s final decision, finding no

discrimination.

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

February 4, 2008

__________________

Date

1 Due to a new data system, this case has been redesignated with the

above-referenced appeal number.

2 “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 was improperly taken, the Commission will scrutinize the

evidence of record to determine whether the error was harmless,

as is found in this case.”  Sotomayor v. Department of the Army,

EEOC Appeal No. 01A43440 (May 17, 2006).

3 The witness’s 25th wedding anniversary coincided with the

hearing.  The witness had long-standing plans to be out of town

at that time.

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0120063520

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C.  20036

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0120063520