Arnoldo P.,1 Complainant,v.Anthony Foxx, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Jun 16, 2016

0120142287 (E.E.O.C. Jun. 16, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Arnoldo P.,1
Complainant,

v.

Anthony Foxx,
Secretary,
Department of Transportation,
Agency.

Appeal No. 0120142287

Agency No. 2013-25087-FAA-05

DECISION

On May 23, 2014, Complainant filed an appeal from the Agency’s April 29, 2014, final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was working in a temporary
appointment as an Air Traffic Control Specialist, FG-2152-01, at the Agency’s work facility in
Oklahoma City.

On May 15, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his race (Asian), national origin (Korean), color
(yellow), and in reprisal for his prior protected EEO activity under Title VII when he was
subjected to unfair testing conditions, and after failing his personal verification (PV) tests, he
was terminated during his probationary period from his position, effective May 1, 2013.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. The record reveals that Complainant claimed that an Air Traffic Control Specialist
Evaluator (hereinafter referred to as the Evaluator) while administering his second PV test,
confused and taunted him and spoke to him during the test in a demeaning tone, and walked
out during testing. According to Complainant, the Evaluator asked him on the day of the test
which airport he was going to work at after the Academy, and after he responded, stated that
she did not understand what he said due to his accent. The Agency noted that Complainant
claimed that the Evaluator treated him unfairly when she did not inform him that she had
started the timer for the test and walked out of the room without telling him to start or giving
him time to plug in his microphone and headset. Complainant asserted that upon the
Evaluator’s return, he noticed the odor of rubbing alcohol from hand sanitizer, which he
claimed indicated that she believed he was dirty since they had shaken hands.

According to Complainant, during the test, the Evaluator inquired in a demeaning tone why he
was performing certain maneuvers during the test. Complainant stated that this was very
stressful because it was a timed fifteen-minute test. Complainant noted that the Evaluator was
also talking to and correcting his classmate during the test, and that this caused confusion and a
lack of organization. Complainant explained that the classmate’s role during the test was to
land and depart planes while his role was to protect other planes from traffic based on the
information that the classmate provided him. Complainant received 27 out of 100 points on
this test. In order to pass, he needed to receive 70 points. Complainant maintained that in
reviewing the test with him, the Evaluator treated him unprofessionally and angrily in front of
other Evaluators, thus embarrassing him.

The Agency noted that Complainant claimed that he received 85% to 100% on written tests,
but all five of his PV tests were under 50%. Complainant argues that the Evaluators who
conducted his three subsequent PV tests graded him more severely than other students because
he believes they learned he contacted an EEO Counselor after the aforementioned difficult PV
test situation.

Complainant further claims that it was unfair to allow the husband of the Evaluator who treated
him badly to evaluate and grade him on his final PV. The Agency noted that Complainant
stated that the Evaluator who treated him badly was one of the toughest Evaluators. According
to Complainant, another student also complained about her interruptions and distractions
during the exam. Complainant stated that he was the only student among five in his class
reviewed by the Evaluator who did not pass the class.

Complainant claimed that the day after he initially consulted with an EEO Counselor, the
Evaluator came to his classroom on her day off and stared at him. Complainant inferred that
other Evaluators and Instructors became aware of his EEO contact given that several
Instructors approached him and remarked that the Evaluator did not have bad intent or mean
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any harm. Complainant stated that he believed Evaluators were ridiculing him because they
would ask him to repeat where he was going after the Academy as though they did not
understand what he said.

The Manager of the Academy’s Quality Assurance Branch stated that Complainant and five of
his classmates failed the course by receiving scores below a minimum of 70%, and twelve
other classmates passed the course. According to the Manager, Complainant received scores
of 47, 28, 42, 49 and 21 on the five PV portions of the test. The Manager of the En Route
Quality Assurance Section of the Quality Assurance Branch stated that although Complainant
received a 100% on one of his written tests, the rest of his scores were very low. According
to this Manager, students are advised that they will be evaluated in the same type of
environment in which they were trained. The Agency noted that the Manager asserted that
Evaluators usually do not speak to the student during an evaluation unless there is something
they need to correct.

The Agency noted that the Evaluator stated in her affidavit that Evaluators generally do not
correct students or interfere with their evaluations, but that there is no policy against speaking
to them. The Evaluator asserted that she would never have interfered with the operation of an
evaluation. The Evaluator maintained that although she discussed with Complainant where he
was going to work, she did not tell him she did not understand him because of his accent, but
rather she believes she did not hear him or misunderstood him. According to the Evaluator,
she tells every student when the timer starts to count down so that once it reaches 00:00, the
evaluation begins. The Evaluator acknowledged that she probably left the testing room as
Complainant began, but this was not uncommon. The Evaluator stated she might have used
the restroom and hand sanitizer. The Evaluator asserted that Complainant had six separation
errors on the evaluation and that he did not understand his errors. The Evaluator maintained
that she was unaware of Complainant’s EEO complaint until she received an e-mail from the
EEO Investigator.

The Agency noted that the classmate who was in the same evaluation as Complainant stated
that he did not recall the Evaluator treating Complainant differently or worse than any other
student. The classmate stated that the Evaluator talked more during the evaluation than other
Evaluators, but it was not derogatory. The classmate asserted that he did not recall the
specifics of what the Evaluator said to Complainant, but he did not recall anything
inappropriate. The classmate added that he believed the Evaluator was tough but fair in her
evaluation and that her husband was fair and professional.

The Agency stated that Complainant’s overall score in the class was 47.96. The Agency noted
that four of the sixteen students, including Complainant, who were judged by the Evaluator
failed the class. The Agency determined that Complainant failed to establish a prima facie case
of race, color, or national origin discrimination. The Agency stated that there is no evidence
that similarly situated developmental Air Traffic Control Specialists outside of Complainant’s
protected classes who also failed training were not terminated. The Agency determined that
Complainant did not set forth a prima facie case of reprisal based on Complainant’s failure to
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establish that the Agency officials responsible for the adverse actions were aware of his prior
EEO activity and that the adverse actions followed the protected activity at such a time or in
such a manner as to raise an inference of retaliatory motivation. The Agency noted that the
Evaluator stated that she initially became aware of the EEO complaint after all of
Complainant’s five evaluations had been administered. The Agency further noted that the
Manager of the En Route Quality Assurance Section stated that the Evaluator’s husband was
not aware of the EEO complaint at the time he administered Complainant’s exam.

Assuming arguendo that Complainant had set forth a prima facie case under the alleged bases,
the Agency determined that it articulated a legitimate, nondiscriminatory reason for
Complainant’s termination. The Agency stated that Complainant did not achieve the passing
grade of 70% that was required to pass the class. The Agency stated that five other students
who were unable to achieve a passing score were also terminated.

The Agency rejected Complainant’s attempt to establish pretext. The Agency stated there is no
proof that the Evaluator referenced Complainant’s accent. The Agency explained that no
student had a PV evaluation with any Evaluator more than once. The Agency noted that
Complainant claimed he is the only member of his class judged by the Evaluator who failed the
course, but the Agency stated that four of the sixteen students evaluated by her failed the class.
The Agency noted that there was one other Asian student and that this student passed the class,
but he was not judged by the Evaluator. The Agency acknowledged that Complainant and two
classmates indicated the course and testing process could have been better organized, but the
Agency pointed out that all students were affected by the course conditions. The Agency
reiterated that Complainant failed all five of his PV evaluations and that they were given prior
to the Evaluators learning of his EEO activity. With regard to the Evaluator’s husband
conducting one of the evaluations of Complainant, the Agency noted that management was not
aware of Complainant’s accusations at the time this evaluation occurred.

ANALYSIS AND FINDINGS

Disparate Treatment/Reprisal

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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
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(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

We shall assume arguendo that Complainant established a prima facie case of discrimination
under each of the alleged bases. With regard to Complainant’s termination from the
developmental training program, the Agency stated that Complainant was removed based on
his failure to pass the class. The Agency points out that Complainant failed each of the five
personal verification tests and that a different Evaluator administered each test. In terms of the
testing conditions, the Agency acknowledges that the Evaluator walked out of the testing room
and interrupted Complainant at times during the exam, but the Agency maintains this is how
the Evaluator usually treats other students, including Complainant’s classmate during the same
test. We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.

With regard to Complainant’s termination, Complainant has not refuted the Agency’s
explanation for his removal. Complainant does not deny that he failed all five of the personal
verification tests. To the extent that the training program was deficient, we observe that this
situation would have impacted all of the trainees and not just Complainant. Any inadequacies
in the training program may indeed have reduced Complainant’s chances of passing the course
but there is no evidence that such overall deficiencies existed due to Complainant’s
membership in certain protected groups. We also find that Complainant has not provided
persuasive evidence to refute the Agency’s position that the Evaluators did not become aware
of his EEO activity prior to administering his evaluations. We find that Complainant has not
established that the Agency’s explanation for its actions was pretext intended to mask
discriminatory motivation.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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:
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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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
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court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

June 16, 2016
Date