Elmer C.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Feb 15, 2018

0120150721 (E.E.O.C. Feb. 15, 2018)

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

Elmer C.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120150721

Hearing No. 410-2012-00391X

Agency No. 2011-24166-FAA-03

DECISION

On December 5, 2014, 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
November 7, 2014, 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
VACATES the Agency’s final order and REMANDS the matter for a supplemental hearing.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Airway
Transportation Systems Specialist, FV-2101-I, in the Atlantic Operations Control Center at the
Atlanta Air Route Traffic Control Center within the FAA’s Air Traffic Organization’s Technical
Operations Unit in Hampton, Georgia. On November 18, 2011, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the bases of race (Black) and
reprisal (prior protected EEO activity) when: (1) in July 2011, he learned that he was not selected

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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for the position of Airway Transportation Systems Specialist (ATSS), FV-2101-J, advertised
under Vacancy Announcement No. ASO-AT0-11-B668-20085; (2) in reference to the non-
selection cited in Claim 1, he was denied his request for feedback information pursuant to the
Human Resources Policy Manual; (3) since October 2010 and continuing, he has been assigned
excessive and additional work by his supervisor (S1); and (4) since October 2011 and
continuing, he has been denied training on the new voice recording equipment.

After 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, which took place on June 14, 2013 and February
28, 2014.2 The AJ issued her decision on September 15, 2014. 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.

AJ’s FINDINGS OF FACT

Non-Selection – Claim 1

After the applicants submitted their applications for the ATSS position, the selecting official for
the position (SO) (Black) created a panel of supervisors (PM1/White, PM2/Black, PM3/White,
PM4/White, and PM5/White) to rank the applicants based on their qualifications.

Both Complainant and the selectee (SE) (White) met the minimum qualifications to be included
on the referral list of 13 applications reviewed by the panel. A score sheet was provided to the
panel members to fill out for each applicant. Each of the panel members reviewed the packages
before discussing each package as a group to reach a consensus on the final scores. The AJ notes
in her decision that two of the panel members testified that they had participated in previous
selection panels and this process was the same used in other selections. The AJ notes that the
panel found that SE had a diversity of experience that ranked him higher than Complainant who
had been in the same position for twenty years. The panel considered diverse experience
important because the new position would encompass one-third of the United States and fifteen
facilities, as well as international services.

During the ranking process, two of the panel members ranked Complainant significantly
differently than one another. The entire panel presented SO with a single list of applicant
rankings separated into “Best Qualified,” “Qualified,” and “Least Qualified.” Two people made
the list of Best Qualified and were interviewed. The panel did not rate Complainant high enough
to be given an interview. Following the interviews, the panel recommended SE for selection.
After reviewing the panel’s recommendation and conducting interviews, SO selected SE.

2 The date of the second day of the hearing is based upon the Agency’s assertion in its appeal
brief but is not confirmed since the Agency has not produced a copy of this transcript and the AJ
does not have a copy to provide.
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Denial of Feedback – Claim 2

The AJ notes in her decision that after learning that he was not selected, Complainant made
several attempts to contact SO to discuss the selection. The AJ further notes that SO did not
discuss the selection with Complainant and failed to respond to a Freedom of Information Act
(FOIA) request regarding the selection.

Complainant asserts that on each previous occasion when he had not been selected for a job
vacancy, the selecting official had notified him of the non-selection. In addition, in each of those
occasions, he received feedback as to why he was not the successful candidate. However,
Complainant testified that when he asked SO to provide him with feedback SO refused.
Complainant asserts that he presented undisputed evidence of his personal knowledge of the
selection process, not only because he had received interviews when he applied for similar
positions prior to this vacancy, but also because he sat on many selection panels while working
for the Agency.

The undisputed record shows that an unsuccessful candidate may request and receive feedback
from the selecting authority about why he or she was unsuccessful. The record further shows
that after SO refused, Complainant submitted a FOIA request to SO. In addition, the record
shows that SO refused to respond to Complainant’s FOIA request. Complainant asserts that the
reason for the refusal to respond to the FOIA request was the fact that SO did not want to give
Complainant a specific document that was part of the selection process. Specifically,
Complainant asserts that SO was attempting to conceal an undated memorandum (Race Memo)
from the rating panel to SO which provides the applicants’ ranking and summarizes each
applicant’s strengths and weaknesses. The Race Memo was obtained through the EEO
investigative process and is part of the EEO record. On the first page of the Race Memo, the
applicants are listed in ranking order and the word “black” is handwritten next to Complainant’s
name. Complainant notes that no other applicant had been singled out in this manner.

Complainant notes that referring specifically to SO’s testimony on the FOIA issue, the AJ found
that “[SO] provided very uncredible testimony that he did complete and send the FOIA request
back.” Complainant argues that the AJ erred in relying on SO’s testimony in other respects
given this credibility finding.

Increased Workload – Claim 3

Complainant testified that S1 assigned work to him and to his co-worker (C1) (White).
Complainant further explained how the work logs show the amount of work he performed on
maintenance on equipment under his responsibility. Complainant further asserts that C1 did
substantially less work than Complainant despite holding the same position and responsibilities
and having the same supervisor. According to Complainant, C1’s workload was approximately
one-quarter to one-third of Complainant’s. Specifically, Complainant asserts that the job entry
logs for C1 and Complainant reveal the following: (1) June 2010 – June 2011: C1 had 384 job
entries, Complainant had 1649 job entries; (2) June 2011 – June 2012: C1 had 472 job entries,
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Complainant had 1714 job entries; (3) June 2012 – June 2013: C1 had 395 job entries,
Complainant had 1,696 job entries.3 Complainant asserts that the Agency provided no plausible
justification for this major discrepancy in workloads.

Training – Claim 4

Complainant contends that the AJ erred in finding that the Agency did not discriminate or
retaliate against him by denying and excluding him from training opportunities. Specifically,
Complainant asserts that after learning of his non-selection, he contacted the EEO office on
September 4, 2011. According to Complainant in early October 2011, S1 suggested that he
attend a local program so that he could receive training on the digital voice recorder (DVR).
This training was scheduled for October 2011. However, as the time approached for the
training, S1 informed Complainant that he was no longer enrolled and that another employee
(C2) from a different organization would go. Complainant contends that C2 did not work on the
DVR equipment and as a result had no real use for the training. Complainant further asserts that
the DVR equipment was Complainant’s responsibility. Complainant asserts that he had the
second highest seniority in the unit and should have received training based on seniority.

Complainant testified that over the years, he had other issues with getting training, not only to
maintain his knowledge but also to maintain needed certifications. He further contends that
although he repeatedly asked for training since 1998, he never received it. On several occasions
the Agency told him he would get some training only to take him out of the class. In one
instance S1 allegedly told Complainant that he was pulling him out of training because
Complainant had not completed a task. Complainant asserts that S1’s explanation was not true.

Complainant further asserts that C1 not only had a very light workload, he also received regular
training. Complainant asserts that the substantial evidence in the record demonstrates that the
Agency subjected him to ongoing illegal discrimination by failing and refusing to provide him
with training. According to Complainant, there was no way he could maintain certifications,
stay up to date on changing technology, or gain additional knowledge so that he could be
promoted. Complainant also asserts that he was denied details into the position at issue on the
basis that details were not permitted for those positions. However, the record contains evidence
to support the conclusion that SE was placed in a detail into the position at issue, giving him an
advantage in the selection process.

ANALYSIS AND FINDINGS

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.

3 Complainant cites his testimony from the second day of hearing to support this assertion.
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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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), Chapter 9, at § VI.B. (Aug. 5, 2015).

Numerous Errors and Omissions Require Remand

AJ’s Failure to Address Evidence of Racial Animus

Complainant asserts that the AJ’s decision is flawed in many respects. Specifically, while the
AJ’s only credibility finding pertains to SO’s failure to provide truthful testimony regarding his
response to the FOIA request, Complainant argues that the AJ failed to rely on his testimony
without any basis. Complainant also asserts that he testified to various discrepancies in the
rating process and asserts that the selection process was implemented in a disparate manner in
comparison to previous vacancies.4 The AJ failed to address this testimony.

Most importantly, Complainant notes, and we agree, that the AJ ignored possible direct
documentary evidence of racial discrimination that was raised by Complainant at the hearing
(i.e., the handwritten annotation of the word “black” next to Complainant’s name in the Race
Memo). This type of annotation does not appear next to any other applicant’s name.
Complainant asserts that this clearly identified Complainant’s race to everyone who saw it.
Complainant asserts that someone in the Agency put that notation on the score sheets, clearly and
unequivocally telling anyone who looked at it that this qualified, but “Black” candidate was
undesirable.

We find that the record is devoid of an explanation by any Agency official as to how this
notation got there, who wrote it, or why it was written.5 We note that if an AJ finds that the
record is inadequately developed or lacking in needed documentation, the AJ should order the
agency to produce documentation that would aid the decision-maker in evaluating the merits of
the complaint. See 29 C.F.R. § 1614.109(a) (once a hearing request is assigned to an AJ, the AJ
assumes full responsibility for the adjudication of the complaint, including overseeing the
development of the record); EEO MD-110, Ch. 7, § III.B (Aug. 5, 2015).

4 In his appellate brief, Complainant asserts (and cites to the second-day hearing transcript) that
he has demonstrated his personal knowledge of the selection process, not only because he had
received interviews when he applied for similar positions prior to this vacancy, but also because
of his previous experience in participating in selection panels while working for the Agency.
5 While we have not reviewed the second day hearing transcript because the Agency has not
produced it, the Agency does not contend that the handwritten notation of Complainant’s race
was made by someone not part of the Agency.
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We find that the AJ’s failure to address this potential direct evidence of race discrimination while
also explicitly concluding that the record is devoid of evidence that race was a factor in the non-
selection, requires us to remand this matter for a supplemental hearing and decision. We are
further troubled by the AJ’s inexplicable failure to address the handwritten annotation of
Complainant’s race while at the same time concluding that SO provided an “uncredible”
explanation for failing to produce the Race Memo.6

AJ Improperly Dismissed Additional Pending Complaints

We find evidence in the record that three of Complainant’s additional EEO complaints may have
been inadvertently or improperly dismissed. Complainant asserts that the AJ improperly
included and dismissed two of his pending complaints (i.e., EEOC No. 410-2013-00017X,
Agency No. 2012-24586-FAA-03 and EEOC No. 410-2014-00062X, Agency No. 2013-2501l-
FAA-03, as listed on the AJ’s decision and the Agency’s FAD) in addition to the complaint that
was properly before her. The Agency cryptically responds in a footnote in its response brief that
it “does not contend that the claims addressed at the hearing were only those accepted in EEOC
No. 410-2012-00391X, Agency No. 2011-24166-FAA-03.”

According to the EEOC hearing database, prior to the AJ’s decision, there were four hearing
requests pending for Complainant. All four hearing requests were closed by the same AJ on the
same day. Yet, the record is devoid of an explanation as to what happened to the three other
complaints (those listed in EEOC records as comprising: 410-2013-00017X/2012-24344-FAA-
03; 410-2013-00258X/2012-24586-FAA-03, and 410-2014-00062X/2013-25011-FAA-03). The
record is devoid of evidence that the Agency issued a final agency action with respect to these
complaints. The record is also devoid of evidence that such complaints have been consolidated
with the instant complaint, and there is no indication as to why the AJ would have listed more
than one number in her decision. The AJ’s decision does not discuss in any way the claims at
issue in Complainant’s other 3 EEO complaints. We also find the Agency’s non-responsive
footnote contained in its reply brief insufficient to resolve this issue.

Confusing Language in the AJ’s Decision

We also find the AJ’s decision confusing. Specifically, on page 7 of her decision the AJ writes:
“Based on the record before me, I conclude the Complainant has/has not established his prima
facie case of gender discrimination and has/has not established his prima facie case for reprisal

6 We also note that the AJ concluded that “[t]here is no evidence in the record that the panel
members knew the prior EEO activity of the applicants or their race.” However, we disagree
with this conclusion. The evidence in the record indicates that SO was aware of Complainant’s
prior EEO activity in approximately June 2011. S1 also testified that he was aware of
Complainant’s prior EEO complaint against Complainant’s former supervisor. While S1 was
unable to pinpoint the date when he first learned of Complainant’s prior EEO activity, he
testified that it was “a couple of years back” (i.e., potentially as far back as February 2008).
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for protected activity. Additionally, Defendant has/has not asserted a LNDR for failing to
promote Complainant in both actions. Last, Complainant has/has not proven that Defendant's
LNDR was actually a pretext for discrimination in both actions.” (underline added for emphasis).
While it appears that a portion of the AJ’s decision was taken from a boilerplate, her intentions
are not clear.

Hearing Transcript

Lastly, we note that despite our attempts to get the Agency to produce the entire record, the
transcript of the hearing’s second day has not been provided. Accordingly, even assuming all
other defects in the processing of this complaint were resolved, we are unable to appropriately
review the merits of this appeal without having the entire record before us and are disturbed by
the failure of the Agency to meet their obligation to produce the entire record despite having
access to the missing transcript.7

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we VACATE the Agency’s final order and REMAND this
complaint for a supplemental hearing and AJ decision in accordance with this decision.

ORDER

The Agency is Ordered as follows:

1. The Agency is directed to submit a copy of the complaint file to the EEOC Atlanta
District Office Hearings Unit (including the transcript of the second day of the hearing
that has already taken place) within fifteen (15) calendar days of the date this decision is
issued. The Agency shall provide written notification to the EEOC Compliance Officer
at the address set forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, within one-hundred and twenty (120) days, the Administrative Judge
shall permit time for discovery and hold a supplemental hearing with respect to the Race
Memo. Following the supplemental hearing and within the one-hundred and twenty
(120) days permitted, the AJ shall issue a new decision with respect to all four claims
(including both alleged bases) raised in Agency No. 2011-24166-FAA-03 in accordance
with 29 C.F.R. § 1614.109 and the Agency shall issue a new final action in accordance
with 29 C.F.R. § 1614.110.8

7 Correspondence between the Agency’s attorney and the Office of Federal Operations confirm
that the Agency received the hearing transcript in March 2014.
8 In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this
remanded case in order to comply with the time frames contained in this Order. The Office of
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2. The Agency has fifteen (15) calendar days to provide clear evidence to the Compliance
Officer that both the Agency and the Atlanta District Office Hearings Unit properly
processed the following complaints: (1) Agency No. 2012-24344-FAA03/EEOC Hearing
No. 410-2013-00017X; (2) Agency No. 2012-24586-FAA-03/EEOC Hearing No. 410-
2013-00258X; and (3) Agency No. 2013-25011-FAA-03/Hearing No. 410-2014-00062X.
To the extent that clear evidence is not presented within fifteen (15) calendar days from
the date this decision is issued, the Agency shall resume proper processing of
Complainant’s complaints by submitting a copy of each complaint file to the Atlanta
District Office Hearings Unit to be processed in accordance with 29 C.F.R. § 1614.109,
and thereafter the Agency shall issue a final action in accordance with 29 C.F.R.
§ 1614.110.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. If the Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The
Complainant also has the right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement. See 29 C.F.R.
§§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the
right to file a civil action on the underlying complaint in accordance with the paragraph below
entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42
U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the
administrative processing of the complaint, including any petition for enforcement, will be
terminated. See 29 C.F.R. § 1614.409.

Federal Operations will issue sanctions against agencies when it determines that agencies are not
making reasonable efforts to comply with a Commission order to investigate a complaint.
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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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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,
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facility or department in which you work. 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

February 15, 2018
Date