0120160572
05-10-2018
Ellan C.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ellan C.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120160572
Hearing No. 430-2013-00413X
Agency No. 2013-24896-FAA-03
DECISION
On November 17, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 29, 2015, final decision concerning her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Developmental Air Traffic Control Specialist, AT-2152-GF at the Agency's Greenville-Spartanburg Air Traffic Control Tower facility in Greer, South Carolina.
Complainant began working at the facility in July 2011 but has never been a Certified Professional Controller (CPC). She believed that the Air Traffic Manager (Manager, African-American/black, male) did not support her request for training. She asserted that the Manager made a conscious decision to delay her training while deciding not to delay the training for her white, male and female coworkers. She claimed that the delays in training has adversely affected her pay, career, reputation, health, and competitiveness for advancement.
The CPC training program consists of Tower training, Nonradar training, Radar training, and Controller in Charge training. Complainant was certified in Tower training in February 2012. She attended Radar training in April - May 2012. The Manager informed Complainant on May 21, 2012, that her continued Radar training would be delayed until mid to late August 2012 due to the Agency's Tower Airspace Initiatives. The Manager indicated that Radar training would continue following the implementation of the Tower Airspace Initiatives. Complainant believed that she could have proceeded with her Radar training before August but the Manager denied Complainant's requests. Complainant noted that a co-worker (Co-worker1, White, male) was permitted to begin Tower training in September despite the same Tower Airspace Initiatives being developed. Complainant asserted that a second co-worker (Co-worker2, White, female) was also provided with accelerated training. Complainant continued the Radar training from November - December 2012 and on-the-job training in January 2013. Complainant also claimed that two additional co-workers (Co-worker3 and Co-worker4, both White, males) were given priority in training and were able to begin Radar training before Complainant. Finally, Complainant also indicated that another co-worker (Co-worker5, White, female) was placed in the Radar classroom training in November and December 2012. Complainant also alleged that the facility's atmosphere was racially and sexually charged.
Complainant also asserted that a trainee can become Controller in Charge (CIC) certified once they are certified for at least six months in the Tower. Complainant indicated that she asked for CIC certification training in September 2012 which was six months after her Tower training. Complainant believed that Co-worker3 was given CIC training in October 2012 while Complainant was not given CIC training until January 2013.
On February 19, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when, her training had been delayed on a continuing basis since May 2012 and her training requests have been ignored.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her 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 her to discrimination as alleged.
Complainant appealed. She asserted that management consciously decided to continually delay her training while consciously deciding to facilitate the training of white, male coworkers. She noted that the same management officials allowed for a racist and sexist atmosphere which has haunted the facility since 1991. She claimed that the Manager had multiple opportunities to make her training a priority while he was making the executive decision to delay training for her but not so for her coworkers. She also argued that the Manager determined that she would not be successful in her training and the only reason for such different treatment from her co-workers would have been her race and sex.
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. (Aug. 5, 2015) (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").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Manager averred that Complainant's training was not delayed based on her race and/or sex. He noted that that the Tower Airspace program was being developed and implemented. The Manager stated that trainees who had not started their radar training would wait until the Tower Airspace program was implemented. He indicated that he spoke with Complainant about the implementation of the Tower Airspace program and that they would start classroom training in August after the Tower Airspace program was to be implemented. He claimed that Co-worker4 and Co-worker5 were also informed of the classroom training would occur following the implementation of the Tower Airspace program. The Manager noted that Co-worker3, Co-worker4, and Co-woker5 were in the same situation as Complainant. He also stated that the implementation of the Tower Airspace program did not occur in August 2012. Instead, the implementation was delayed until December 2012. The Manager also asserted that Complainant was on extensive leave from July 2012 to September 2012 due to surgery. The Manager stated he was aware that others in workplace made offensive racial comments and the matter was investigated. However, he indicated that Complainant's race and/or race did not play a role in the delay in his decisions to provide Complainant with training.
As for the CIC training, the Manager averred that one of the requirements to be CIC qualified, Complainant needed to be certified in the area on Tower duties for six months. He asserted that Complainant was certified on the Tower on February 9, 2012, and would have been eligible for CIC consideration on or after August 9, 2012. He noted that during that time, Complainant missed three months of work from April 2012 to September 2012, so she had not performed the Tower duties for six months as required.
Based on our review of the record, we find that the Manager provided legitimate, nondiscriminatory reasons for its actions regarding Complainant's training requests. We turn to Complainant to establish that the Agency's reasons were pretext for discrimination. Complainant argued that the workplace's atmosphere was racially and sexually charged. We note that Complainant did not assert that the Manager engaged in the alleged racial and/or sexist conduct. Based on our review of the record, we find that Complainant has not supported her claim that the Manager's actions constituted unlawful discrimination.
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 final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 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
May 10, 2018
__________________
Date
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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