Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Jul 18, 2014

0120131581 (E.E.O.C. Jul. 18, 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
(Federal Aviation Administration),
Agency.

Appeal No. 0120131581

Hearing No. 480-2011-00360X

Agency No. 201023458FAA06

DECISION
On March 16, 2013, Complainant filed an appeal from the Agency’s February 22, 2013 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it
for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant was working as an Air Traffic
Control Specialist in Training at the Camarillo Air Traffic Control Tower. Prior to this
assignment, Complainant had twice failed to “certify” at the Los Angeles Air Routing Traffic
Control Center where he had worked for many years as a “certified professional controller in
training.” The Camarillo Air Traffic Control Tower was considered “a lower level facility” in
terms of air traffic control complexity.

On October 14, 2010, Complainant filed an EEO complaint alleging that the Agency harassed
him on the bases of race (African-American), age (43), and in reprisal for prior protected EEO
activity by prolonging the amount of time he spent in training so that he lost almost an entire
year of premium pay. Complainant alleged that he was held to unrealistic expectations,
consistently incorrectly assessed and falsely accused of errors. He also claims that his
managers improperly interfered with the processing of his EEO complaint.
0120131581

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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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for summary judgment,
and issued a decision on February 14, 2013.

In his decision, the AJ found it undisputed that Complainant’s training record was “spotty” and
exhibited a number of deficiencies and shortcomings. The AJ painstakingly examined the
following incidents of alleged harassment: (i) his Front Line Manager set unrealistic
expectations; (ii) he was denied a request to change training teams; (iii) his training team
incorrectly determined that he did not meet the acceptable standard; (iv) his on-the-job training
instructors were improperly influenced in their adverse recommendation decision regarding his
certification; (v) his Front Line Manager falsely indicated that training reports contained "lies
and were untrue,” and instructed trainers to reconstruct training reports that were too
favorable; and (vi) he was falsely accused of causing an operational error. The AJ concluded
that none of these incidents occurred as Complainant alleged. He further concluded:

Through admissible evidence, the agency articulated neutral, non-discriminatory
and legally sufficient reasons for delaying Complainant's certification until he
successfully passed the skills check test administered by the Front Line Manager
in October of 2010. Complainant became fully certified on November 7, 2010.
Complainant provided no evidence, whatsoever, indicating that he passed a
skills check test entitling him to such certification prior to October of 2010, or
that his previous failures to pass the skills check test were in any way
discriminatory or retaliatory. An independent Training Review Board reviewed
Complainant's training history in August of 2010 and determined that
Complainant could not then be certified on account of his performance
deficiencies. The Board recommended that Complainant's training period be
extended to accommodate Complainant’s need to correct his shortcomings. This
recommendation was adopted by the Agency and led to Complainant's
certification as an Air Traffic Controller. There is no evidence to the contrary.

AJ Decision at 15. The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS
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). 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.
0120131581

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To prove his harassment claim, Complainant must establish that he was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in his position would have
found the conduct to be hostile or abusive. Complainant must also prove that the conduct was
taken because of a protected basis, i.e.

, in this case, race, age or prior protected activity. Only
if Complainant establishes both of those elements, does the question of Agency liability present
itself.
We note that it did take Complainant almost seven months to pass the skills check test, which
given his approximately 15 years of experience seems unusual. However, he returned to
Camarillo because of his failure to certify in Los Angeles, despite those years of experience.
Complainant alleges that in Camarillo, he was expected to be perfect, an “essentially”
unachievable standard. Even assuming this to be true, we find no evidence that this was
because of his race, age or prior protected activity. In addition, we agree with the AJ that
there was no persuasive evidence that management interfered with the processing of this EEO
complaint. We discern no basis to disturb the AJ’s decision, and we AFFIRM the Agency’s
final order.

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
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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

(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
July 18, 2014