Complainant,v.Anthony Foxx, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Apr 4, 2014

0120093129 (E.E.O.C. Apr. 4, 2014)

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

,
Complainant,

v.

Anthony Foxx,
Secretary,
Department of Transportation,
Agency.

Appeal No. 0120093129

Hearing No. 570-2008-00812X

Agency Nos. 2008-00010-FTA, 2008-00015-FTA-02

DECISION
On July 23, 2009, Complainant filed an appeal from the Agency’s June 23, 2009, final
decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND
Complainant worked as a Supervisory Equal Opportunity Specialist, GS-360-15, in the
Agency’s Office of Civil Rights in Washington, D.C., from November 2001 through January
8, 2008.1

Complainant suffered from Osteogenesis Imperfecta since birth, which he explained
as a hereditary bone disease wherein the body does not produce enough calcium and as a result
his bones break very easily. Complainant stated he has never been able to walk and has always
used a wheelchair.
Complainant filed an EEO complaint dated January 14, 2008, under Agency Case No. 2008-
00010-FTA, which was subsequently amended, alleging that the Agency discriminated against
him and subjected him to a hostile work environment since 2007, on the bases of disability
(osteogenesis imperfecta, diabetes, high blood pressure), age (56), and in reprisal for protected
EEO activity when:

1 Complainant's position was also referred to in the record as Director of Civil Rights.
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a. During a conversation regarding Complainant’s need to be near a restroom
while flying due to his disability, the Federal Transit Administration (FTA)
Administrator suggested Complainant use astronaut diapers while flying;
b. The FTA Administrator stated that he could get "two for one" by canceling
Complainant’s registration at a conference since Complainant needs to travel
with a Personal Assistant because of his disability;
c. Complainant was denied the opportunity to attend a Community Transportation
Association of America (CTAA) conference because he needed an
accommodation to travel and was told that the FTA Administrator wanted a
younger person to attend the conference;
d. Complainant was denied an opportunity to attend a Reno conference because,
per doctor's orders, he needed to fly business class due to his disability;2
e. The FTA Administrator repeatedly told Complainant that he wants younger
people to replace older people on staff;

f. On April 6, 2007, the FTA Administrator asked Complainant if he could be
arrested for drunk driving in his wheelchair if he had a drink or two;
g. In Apri1 2007, the FTA Administrator told Complainant that he did not want to
sit next to a particular individual who happens to be a quadruple amputee
because it was too upsetting to sit next to a disabled person;
h. On August 22, 2007, an “All Hands” meeting was scheduled for an inaccessible
location and Complainant was told to call in; when Complainant objected, he
was told that if he wanted the meeting at an accessible location, he would have
to make the arrangements himself;
i. In 2007, the Head of Congressional Affairs suggested to members of
Complainant's staff that Complainant had damaged a glass panel by ramming
into the wall with his wheelchair;
j. On or about May 2007, the Human Resources Director said that Complainant
needs a job coach because he has psychological as well as physical problems;
k. After the Human Resources Director accused Complainant of encouraging a
DOT employee to file a complaint, she threatened Complainant with
repercussions, eliminated a Full Time Equivalent (FTE) position from
Complainant’s office, Complainant’s nominations for various committees were
rejected, and sign-off authority to determine whether a complaint from the
public was legitimate was transferred from Complainant's office to the Regions;
and
l. On January 9, 2008, Complainant was reassigned from his position of
Supervisory Equal Opportunity Specialist, GS-360-15, to the position of
Transportation Program Analyst (also referred to as Senior Program Analyst in

2 Although Complainant's March 14, 2008 request to amend, identifies the CTAA conference
as occurring in Las Vegas, in his affidavit Complainant clarified that the conference occurred
in Reno. Issues (b), (c), and (d) all relate to the CTAA conference in Reno.
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the record), OS-2101-15, in the Office of Research Demonstration and
Innovation, without any prior warning from upper management.

Complainant subsequently filed a second EEO complaint dated October 29, 2008, under
Agency Case No. 2008-00015-FTA-02, alleging that the Agency subjected him to
discrimination on the bases of age, disability, and in reprisal for prior protected EEO activity
when: in September 2008, Complainant was not selected for the position of Supervisory Equal
Opportunity Specialist, GS-0360-15, advertised under Vacancy Announcement No. FTA-TCR-
2008-0002.

On November 6, 2008, the Agency issued a letter accepting Complainant's complaint for
processing. The Agency advised Complainant that if he disagreed with the definition of the
accepted issue he should contact the Agency’s Departmental Office of Civil Rights within five
days of his receipt of the letter.

The record reveals that on November 12, 2008, Complainant sent an electronic mail message
to the Agency requesting to amend his complaint to include an allegation that the Agency
discriminated against him in reprisal for prior protected EEO activity when the Agency
improperly and knowingly attempted to pursue unfounded allegations that Complainant had
engaged in sexual harassment. On November 13, 2008, the Agency dismissed this issue for
failure to state a claim.

At the conclusion of the investigation on the accepted issues, the Agency provided
Complainant 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
but subsequently withdrew his request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged. The decision also affirmed
the Agency’s dismissal of the allegation that the Agency improperly and knowingly attempted
to pursue unfounded allegations that Complainant had engaged in sexual harassment.

On appeal, Complainant argues that the Agency’s final decision did not take into account his
claim that the Agency created a hostile work environment based on his disability.
Additionally, Complainant states that the Agency subjected him to harassment and reprisal “for
asking and filing an EEO complaint for unreasonable accommodation.” Complainant also
states that he was harassed and threatened for carrying out his duties as an EEO Officer for the
Agency. Finally, Complainant states that although his salary and grade level were not changed
when he was reassigned on January 9, 2008, he states that the conditions of his employment
were changed. For example, Complainant states that as Civil Rights Director he had a budget,
supervised staff, and reported directly to the FTA Administrator. In contrast, he states that
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after the reassignment he had no budget, supervised no one except his Personal Assistant, and
was removed from the Executive Management Team.3

In response to Complainant's appeal, the Agency argues that it has articulated legitimate,
nondiscriminatory reasons for reassigning Complainant which Complainant failed to show were
a pretext for discrimination. With regard to Complainant’s hostile work environment claim,
the Agency argued Complainant cannot establish by a preponderance of evidence that the
Agency discriminated against him since his allegations do not rise to the level of actionable
harassment.

ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See

Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (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”).
At the outset we note that Complainant does not challenge the Agency’s dismissal of his claim
that the Agency improperly and knowingly attempted to pursue unfounded allegations that
Complainant had engaged in sexual harassment. Thus, we will not address this issue in the
present decision. Moreover, we do not decide in this decision whether Complainant was a
qualified individual with a disability.

Agency Case No. 2008-00010-FTA

Despite Complainant's contention to the contrary, we note the Agency did address
Complainant's claim that the Agency created a hostile work environment based on his
disability. With regard to Complainant's claim of a hostile work environment, we note that
issues (b), (c), and (d) all relate to the CTAA Conference which took place in Reno, Nevada,
from May 19 - 25, 2007. The record reveals that Complainant was initially approved to attend
the conference and then a few days prior to the conference, the Deputy Administrator informed
him that his name was being removed from the list of conference attendees. Complainant
states that the Deputy Administrator told him that the Secretary's Office wanted to limit the

3 We note that Complainant submitted additional statements in support of his appeal dated
September 9, 2009, September 16, 2009, and August 9, 2010. As these statements were
submitted beyond the applicable limitations period under 29 C.F.R. § 1614.403(d), they will
not be considered in this appeal. Even if we consider the briefs as timely filed, the information
submitted does not change our ultimate decision affirming the Agency’s decision.
0120093129

5
number of employees attending the Conference to ten, and that the Administrator wanted
younger staff members to attend. Complainant also claims that the Administrator informed
him by telephone that his decision was based on the fact that he could get "two for one" by
canceling Complainant's attendance, since he needed to travel with a Personal Assistant as a
reasonable accommodation for his disability. Complainant claims that the Administrator also
mentioned that he wanted younger people to attend the conference. Complainant states that he
had previously provided a doctor's note to the Administrator’s office detailing his need to fly
business class and claims that after he submitted that note, the Administrator’s Special
Assistant (SA 1) informed him that the Administrator had concerns about the cost of a business
class ticket to the conference in Reno.

The record reveals that the FTA submitted a list of 22 employees, including Complainant, to
the Office of the Secretary, asking that the Secretary's Office permit those employees to attend
the CTAA conference. However, the Secretary's Office indicated that the list needed to be
reduced to approximately 12 names total. The Deputy Administrator stated that consistent with
the FTA's effort to make leadership development and career development experiences available
to lower-ranking employees, the Administrator asked that some of the higher-ranking
employees, including Complainant, forego the trip. The record reveals that eight of the ten
employees removed from the conference attendance list were either Senior Executive Service
(SES) or GS-15 Managers. The Administrator denied making the comment that he could get
“two for one” by canceling Complainant's registration and also denied stating that he wanted
younger people to attend the conference. The Administrator’s Specialist Assistant stated that
neither the Administrator nor the Deputy Administrator expressed any concern about
Complainant's need to travel with a Personal Assistant. SA 1 also stated he never heard the
Administrator indicate that younger people should attend the conference. Upon review of the
record, we find Complainant failed to show that the Agency’s actions in removing his name
from the CTAA Conference was a pretext for discrimination based on his age, disability, or in
reprisal for protected EEO activity.

With regard to issue (h), Complainant claimed that on August 22, 2007, the Agency scheduled
an “All Hands” meeting at the National Transportation Safety Board (NTSB) Public Hearing
Room, a location which was inaccessible. Complainant stated that the meeting was scheduled
by the Administrator’s Special Assistant (SA 2). Complainant stated that the location had
previously been determined to be inaccessible by the Civil Rights Office and the Office of
Congressional Affairs. Complainant states that after learning of the location for the August 22,
2007 meeting, he informed SA 2 that the location was inaccessible. Complainant stated that
SA 2 said she was not informed the location was inaccessible and told him people could call in
if they did not want to attend in person and that Complainant could find an alternate location
himself if he did not like that location. Complainant stated although it was not his job to do so,
he researched alternate locations and then shared his findings with SA 2.

Both the Deputy Administrator and the Administrator stated that they were not aware that the
Civil Rights Office or the Office of Congressional Affairs had determined that the location was
inaccessible. The Administrator stated that after SA 2 told him that the Complainant had
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expressed concern about the inaccessibility of the location, he told her to make sure she found
an accessible location and provided reasonable accommodation to all. The Administrator
explained that he asked SA 2 to make sure that the final location was acceptable to the Office
of Civil Rights, and at the time, Complainant was the Director of that office. SA 2 stated that
she arranged for the “All-Employee” meeting to take place the NTSB conference center since
that facility had been used for a prior “All-Employee” meeting. She stated that when she made
those arrangements she was not aware that there were any accessibility issues at that site. She
also stated that at the time she made the arrangements she was not aware that the NTSB
location would have any impact upon whether Complainant would be able to attend the
meeting. SA 2 denied telling Complainant that he could call into the meeting instead of
appearing in person and denied informing Complainant that he should find another location.
SA 2 contacted the NTSB regarding accessibility and was informed the location was accessible.
SA 2 stated she then walked the accessible route for the NTSB site and was concerned that it
could take longer to travel than the nonaccessible route and therefore cancelled the reservation
at the NTSB facility and rescheduled the event at another location. SA 2 stated that when she
informed the Administrator and Deputy Administrator that the NTSB facility was not
preferable and that Complainant had raised concerns about using the facility, she was told to
find a new more accessible location promptly, which she did. Complainant is not claiming he
was not accommodated by the location ultimately used for the meeting. Upon review, we find
Complainant has failed to show that the Agency’s actions in scheduling the location of the “All
Hands” meeting were motivated by discriminatory animus.

With regard to issue (k), Complainant stated that in June 2007, Employee X contacted one of
his staff members claiming he had not received a reasonable accommodation for his disability.
Complainant stated that on June 29, 2007, he received a call from the Human Resources
Director who was one of the named responding officials in Employee X’s complaint.
Complainant alleged that the Human Resources Director accused Complainant of "helping
(Employee X) file," and told him that there would be repercussions. Complainant stated that
the Human Resources Director said she had spoken to the Administrator, who had told her
Complainant should work with her on getting rid of Employee X's complaint as soon as
possible. Complainant stated the he told her that it was his responsibility to ensure Employee
X received his due process under EEO regulations, and that the Human Resources Director
repeated that there would be repercussions and then hung up on him. Complainant explained
that he briefed the Administrator on Employee X’s complaint and stated the Administrator told
him that the Human Resources Director and Complainant should "take care of it."
Complainant stated that when he asked what that meant, the Administrator told him to get rid
of it. Complainant alleged that when he informed the Administrator that Employee X had due
process rights under EEO, the Administrator stated that Complainant would be held
responsible.

In her affidavit, the Human Resources Director stated that she did not make any statement
asserting repercussions for Complainant's involvement in Employee X’s or any other EEO
action. Additionally, the Human Resources Director stated she did not discuss with
Complainant any conversation between the Administrator and herself regarding Employee X's
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7
EEO complaint. The Human Resources Director stated that the Administrator never made any
such statement in her presence regarding Employee X’s EEO complaint. The Administrator
did not recall having a conversation with the Human Resources Director regarding Employee
X’s complaint.

Additionally, with regard to issue (k), Complainant stated that a FTE position was eliminated
from his office, his nominations for various committees were rejected, and sign-off authority to
determine whether a complaint from the public was legitimate was transferred from
Complainant's office to the regions. With regard to the FTE, Complainant stated that on
September 12, 2007, he began the process to fill a vacancy for an EEO Counselor in the office
and at that time, he learned that the position had been eliminated by the Human Resources
Director. Complainant states that the Human Resources Director told him that since he had
promoted internally, the FTE was lost. However, Complainant stated that during a staff
meeting on October 11, 2007, regarding the matter, the FTE was given back to his office.

The Human Resources Director noted that no positions were eliminated from the Office of
Civil Rights. The Human Resources Director stated that Complainant made some internal
promotions within the office, and subsequently misunderstood staffing policy as it related to
advertising vacant positions following those promotions. The Associate Administrator for
Administration, the Human Resources Director’s supervisor, explained that no position was
eliminated from the Office of Civil Rights. She stated that she met with Complainant and the
Human Resources Director to review that office's staffing history and was able to satisfy
Complainant that he had mistakenly assumed that a position had been eliminated, when it had
not.

Additionally, Complainant stated that he nominated Nominee 1 to serve on the Awards
Committee and Nominee 2 for the Customer Services Standards Committee and neither of his
nominations was accepted. Complainant stated that the Human Resources Director promised
him repercussions if he did not get rid of Employee X’s complaint and Complainant alleged
that failure to accept his nominations for these committees seemed to him to be such a
repercussion. The Human Resources Director noted that despite the fact that Complainant
missed the deadline for submitting nominations, Nominee 1’s name was submitted to the
review committee for consideration. She explains that there were ten nominations, but as there
was a limit of seven members, three nominations were not approved. The Human Resources
Director stated that the Office of Human Resources had no role in the solicitation for, or
approval of, nominations for the Customer Service Standards Committee.

Additionally, Complainant stated that on September 5, 2007, the Administrator created a new
delegation of authority whereby Complainant's office could no longer send any correspondence
to a grantee (meaning a recipient of Federal Transit money against whom a civil rights
complaint has been filed) without concurrence from the Regional Offices. The Administrator
stated that there was no actual, written change in the delegations of authority. The
Administrator stated the Notice that was issued was to ensure coordination and communication
by the Office of Civil Rights with the Regions and vice-versa, including Regional Counsel and
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Civil Rights Officers. The Administrator said the Notice clarified that the Regional
Administrator must ultimately concur with correspondence from his or her Regional Counsel
or Regional Civil Rights Officer before the correspondence goes out. He noted that if the
Regional Administrator does not concur, the matter is referred to the Chief Counselor the
Director of the Office of Civil Rights, who may seek resolution from the Administrator. The
Administrator said this did not alter the delegation of authority but clarified that a Regional
Counselor Regional Civil Rights Officer could not send a letter from the Region without the
Regional Administrator's knowledge and could not do so unless the Regional Administrator
concurred. The Deputy Administrator stated that the Notice was issued to clarify that the
Office of Civil Rights needed to coordinate responses to the grantees with the Regional
Offices. She stated this had nothing to do with anything related to Employee X’s complaint but
everything to do with a consistent problem Complainant had in failing to coordinate his office's
activities with the rest of the FTA. Upon review, we find Complainant has failed to show that
the Agency’s actions as described in issue (k) were discriminatory.

With regard to issue (l), Complainant alleged that when he arrived for a meeting with the
Deputy Administrator on January 9, 2008, he was told he was being assigned to a GS-15
Senior Program Analyst position in the Research Office effective immediately due to his
expertise in the area of disability. The Deputy Administrator, in consultation with the
Administrator, made the decision to reassign Complainant. The Deputy Administrator stated
Complainant was reassigned because although he showed great competence in the area of the
ADA and general accessibility issues, she did not approve of the way he was managing the
Office of Civil Rights. She stated Complainant was not an effective manager, failed to
coordinate the activities of his office with the rest of the FTA, including the Regional Offices,
and a number of people complained that he was rude, disrespectful, and difficult to work with
professionally. The Deputy Administrator also stated he did not manage his staff or budget
wisely or effectively, and he was unwilling to work with other, often more senior staff in an
effort to coordinate FTA activities. Additionally, she asserted that he spent the vast majority
of the Office of Civil Rights’ travel budget to pay for his own travel to events, thereby
depriving lower-level staff the opportunity to gain experience and leadership skills. She noted
that she had previously brought her concerns to Complainant's attention and gave him ample
time to improve. The Administrator stated he approved the Deputy Administrator’s decision to
reassign Complainant based on Complainant's inability to manage his office well, his poor
communication with other FTA staff, and a belief that Complainant could help FTA's mission
more if he were focused less on management matters and more on ADA and civil rights
advocacy. In response, Complainant stated that the Deputy Administrator did not mention any
perceived problems with his job performance, his treatment of employees or the public, or his
level of interest in the parts of the civil rights laws not dealing with disability. He stated that
all of his evaluations indicated that his work was at the achieved or exceeded expectations
level.

During the relevant time, the Agency used a performance rating scale consisting of the
following ratings: Achieved Excellence (6), Exceeded Expectations (4-5), Achieved Results
(3), Minimally Satisfactory (2), and Unsatisfactory (1). The record contains a copy of
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Complainant's performance appraisal for the period of October 1, 2005, through September
30, 2006. The rating shows Complainant's final overall rating was Exceeded Expectations.
The appraisal contained a rating scale to measure the effectiveness of the supervisors and
managers in a leadership role. The rating consisted of a six-point scale with one point being
the lowest and six points being the highest. In the appraisal, Complainant received a score of
four in the following key characteristics: manages the budgetary process; oversees
procurement and contracting procedures; integrates and coordinates logistical operations;
establishes and maintains working relationships with internal organizational units; considers
and responds appropriately to the needs, feelings, and capabilities of different people in
different situations; being tactful and treating others with respect.

The record also contains Complainant's performance appraisal for the period of October 1,
2006, through September 30, 2007.4

Complainant's final rating for this period was Achieved
Results. In the appraisal, Complainant received a score of two in the areas of develops new
insights into situations; takes a long-term view and builds a shared vision; customer needs and
expectations are identified and considered when making decisions, identifying solutions, and
resolving commitments; understands the organization’ financial processes, prepares, justifies,
and administers the program budget; represents and speaks for the organizational unit and its
work. Additionally, Complainant received a score of one in the following categories:
establishes and maintains working relationships with internal organizational units and persuades
others; builds consensus through give and take; gains cooperation from others to obtain
information and accomplish goals.
The record contains an affidavit from the FTA's Associate Administrator for Program
Management who stated that Complainant's behavior at Executive Staff meetings was
unprofessional in that he did not allow others to complete their sentences and denigrated their
presumptive positions and attitudes. The Associate Administrator also noted that she shared
her concerns with the Deputy Administrator and the Administrator and informed them of her
belief that the Complainant was partisan, lacked objectivity, did not treat her with respect, and
did not deal with a very severe personnel issue in the Philadelphia region.

The record also contains an affidavit from the FTA's Regional Administrator for Region 1 who
often interacted with Complainant concerning Civil Rights issues in his region. The Regional
Administrator for Region 1 stated that Complainant had poor interpersonal relationships with
his FTA Executive Management Team colleagues, and did not provide timely and responsive
customer service to his colleagues and FTA grantees. He asserted that Complainant could at
times be belligerent and demeaning to his colleagues, and sometimes did this in public. He
stated that when challenged with different points of views on civil rights matters, Complainant
would sometimes infer that his colleagues were attacking him personally. The Regional
Administrator stated that he raised these matters to the previous Administrator, the previous

4 This appraisal is signed by the Deputy Administrator; however, it is not signed by
Complainant.
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Deputy Administrator, and the current Deputy Administrator indicating that Complainant did
not work in a collaborative fashion with him, his FTA colleagues, and Region 1 grantees.

Moreover, the record reveals that in August 2007, Complainant's Office sent a letter to the
Southeastern Pennsylvania Transportation Authority (SEPTA) weighing in on matters that were
in litigation between SEPTA and the City of Philadelphia. The Agency’s Regional officials
and the other offices in headquarters were not apprised or consulted before the letter was sent.
As a result, the Administrator issued a letter to SEPTA apologizing for the August 2007 letter
issued to SEPTA. The Agency felt this problem was caused in part due to Complainant's
failure to work cooperatively within headquarters and with the Region. Upon review, we find
Complainant failed to show that the Agency’s articulated reason for his reassignment, his poor
performance as a manager, was a pretext for prohibited discrimination.

The remaining allegations of harassment concern several comments allegedly made regarding
Complainant's protected bases and his need for a reasonable accommodation (issues (a), (e),
(f), (i), and (j)) and one alleged comment surrounding another disabled person (issue (g)).
With regard to issue (e), the Administrator denied stating that he wants younger people to
replace older people on the staff. With regard to issue (g), the Administrator denied stating in
April 2007, that he did not want to sit next to a quadruple amputee because it was too upsetting
to sit next to a disabled person. With regard to issue (j), the Human Resources director denied
stating in May 2007, that Complainant needed a job coach because he had psychological as
well as physical problems. The Human Resources Director explained that every member of
the FTA Executive Management Team (EMT) was assigned an Executive Coach. She noted
there were additional funds remaining in the Central Training Account for job coaches and that
Complainant requested an extension of his contract period. The Human Resources Director
stated she agreed to extend the contract and she noted that she extended the service period for
other members of the EMT as well. We note Complainant provided no corroboration for the
statements allegedly made in issues (e), (g), and (j). Upon review, we find Complainant has
not shown by a preponderance of the evidence that he was subjected to harassment based on
disability, age, or reprisal regarding issues (e), (g), and (j).

We now review the remaining three incidents of alleged harassment under issues (a), (f), and
(i). Under issue (a), Complainant alleged that on April 6, 2007, during a conversation
regarding his need to be near a restroom while flying due to his disability, the Administrator
suggested Complainant wear astronaut diapers while flying. The Administrator denied making
this comment. Complainant's Personal Assistant who was present during this meeting
confirmed that the Administrator remarked that Complainant should consider wearing astronaut
diapers. The Personal Assistant stated that it appeared that the Administrator was trying to
make a joke with this statement. With regard to issue (f), Complainant stated during the same
meeting on April 6, 2007, the Administrator asked Complainant if he could be arrested for
drunk driving in his wheelchair if he had a drink or two. The Administrator denied making
this comment. Complainant's Personal Assistant confirmed that the Administrator asked
Complainant whether he could get arrested for drunk driving if he had a drink or two. The
Personal Assistant noted that Complainant responded that he was not a car. With regard to
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issue (i), Complainant stated that the Head of Congressional Affairs suggested to members of
Complainant's staff that Complainant had damaged a glass panel, which had recently fallen
from the fifth floor, by ramming into the wall with his wheelchair. The Head of Congressional
Affairs denied making this comment. Complainant's Personal Assistant stated that the Head of
Congressional Affairs walked by her and Person A and said something to the effect of, "It
looks like [Complainant] did that by ramming into it with his chair." She stated that shortly
after making the comment, the Head of Congressional Affairs returned and apologized and said
that his comment had been inappropriate, and then asked that they not tell Complainant he had
made the comment. Person A stated that the Head of Congressional Affairs asked whether
Complainant had been working late the night before, and asked “did [Complainant] do that
[referring to the broken glass]?" Person A stated that he had no recollection of the Head of
Congressional Affairs stating or insinuating that the panel had been damaged by Complainant’s
wheelchair. In the present case we do not find the three comments described in issues (a), (f),
and (i) were sufficiently severe or pervasive to constitute harassment. We note that the
comment in issue (i) was not made directly to Complainant. Furthermore, because we find no
discrimination with regard to any other incidents in the complaint, issues (a), (f), and (i) cannot
be combined with other incidents to constitute a discriminatory hostile work environment.

Agency Case No. 2008-00015-FTA-02

At the time Complainant applied for Vacancy Announcement No. FTA-TCR-2008-0002, he
was working as a Senior Program Analyst, GS-15, Office of Research Management. The
vacancy was for the Director of Civil Rights, the same position from which Complainant had
been reassigned in January 2008. The Selecting Official (SO) was the Deputy Administrator
who had reassigned Complainant from his previous position in January 2008. The SO
appointed a panel of three members to interview the candidates. The panel interviewed the
candidates and forwarded the names of the two best qualified candidates for final
consideration. Complainant was among the pool of qualified candidates interviewed by the
panel; however, his name was not forwarded as a final recommended candidate. The SO and
the Chief Counsel both reviewed the applications of the two recommended candidates and
interviewed both of them. The SO and the Chief Counsel believed that the Selectee, the
Acting Director of Civil Rights at the time, was the better candidate for the position, and the
Selectee was chosen. The SO stated that she chose the Selectee because of her vision to reform
the office, to improve accountability and transparency, to develop staff, and to improve the
office's incorporation into the FTA's broader organization. The Chief Counsel stated that he
recommended the Selectee for the position because she was able to articulate compelling
answers to his questions about rebuilding the Civil Rights Office and increasing collaboration
with the rest of the FTA so that Civil Rights issues would be more a part of the organization.

The record discloses that the Agency has articulated legitimate, nondiscriminatory reasons for
not selecting Complainant for the Director of Civil Rights position in September 2008, namely
his name was not forwarded to the Selecting Official for final consideration. Further,
Complainant has not shown that the nonreferral by the interview panel was based on his
purported disability, age, or in reprisal for protected EEO activity. Additionally, Complainant
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has failed to show that the Agency’s reasons for its actions were mere pretext to hide unlawful
discrimination.

CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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
0120093129

13
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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

Date
April 4, 2014