Emerita G.,1 Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.Download PDFEqual Employment Opportunity CommissionJan 6, 20160120142806 (E.E.O.C. Jan. 6, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emerita G.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120142806 Hearing No. 560-2014-00034X Agency No. 2013-24864-FAA-04 DECISION Complainant filed an appeal from the Agency’s July 1, 2014 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff 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 decision. BACKGROUND Complainant worked as a Computer Specialist at the Automation Systems Support Center (ASSC) in Olathe, Kansas. On February 13, 2013, she filed an EEO complaint in which she alleged that her first-line supervisor, the ASSC Manager (S1) discriminated against her on the bases of race (African-American), sex (female), religion (Christian), disability (sickle-cell anemia), age (52), and genetic information by switching her shift from evening to day and by 1This 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. 0120142806 2 assigning her more job duties without giving her additional training to handle those responsibilities.2 At the conclusion of the ensuing investigation, the Agency notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but withdrew her request on April 18, 2014. 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. In a memorandum dated October 30, 2012, S1 informed Complainant that, effective November 16, 2012, he would be changing her assignment due to operational requirements. Specifically, S1 advised Complainant that because of recent computer equipment upgrades that drastically reduced the need for a night shift, he would be moving her from Friday through Tuesday with a start time of 10:00 PM to Friday through Monday with a start time of 7:00 AM. Investigative Report (IR) 296, 332-33, 440-42. S1 maintained that all of the duties that Complainant was required to perform were necessary to the operation and maintenance of the new computer systems and that Complainant received the training that she had asked for in connection with the upgrades. IR 443-45, 453, 469, 533, 550-51. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s decisions involving shift assignments, job duties and training unless there is evidence of a discriminatory motivation on the part of the officials responsible for those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on her claim of disparate treatment in connection with S1’s decisions on those matters, Complainant would have to prove, by a preponderance of the evidence, that S1 was motivated by unlawful considerations of her race, sex, religion, age, disability, or genetic information when he made those decisions. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In a circumstantial-evidence case such as this, Complainant can prove the existence of an unlawful motivation by showing that S1’s articulated reasons for the actions at issue are a pretext. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext can include testimony or documents that tend to show discriminatory statements or past personal treatment attributable to S1, comparative or 2Complainant also alleged that S1 denied her the opportunity to have a union representative present when she was discussing her shift change with S1. The Commission has held that denial of union representation fails to state a claim under the EEO process because it is not a matter that addresses a personal loss or harm to a term, condition, or privilege of employment. Moore v. United States Postal Service, EEOC Appeal No. 0120120324 (March 8, 2012); Hallinan v. Department of Homeland Security, EEOC Appeal No. 0120061635 (April 12, 2007); Boxdell v. United States Postal Service, EEOC Appeal No. 01A33563 (December 16, 2003). Consequently, we find that this claim is properly dismissed for failure to state a claim. 29 C.F.R. § 1614.107(a). 0120142806 3 statistical data showing differences in treatment across racial, gender, religious, age, disability, or genetic lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). When asked by the investigator why she believed that her race, sex, religion, age, disability, and genetic information were motivating factors in S1’s decision to reassign her to the day shift and modify her duties, Complainant merely listed employment discrimination on a compilation of more than twenty alleged statutory and regulatory violations that included no specifics. IR 266-70. Complainant’s argument seems to rest on the notion that the acts complained of in and of themselves are sufficient to establish a motive. This is simply not true. The statutes the Commission enforces cannot prevent employers from making or implementing decisions about workplace terms and conditions that employees disagree with, unless those decisions are based upon considerations that are explicitly prohibited by those statutes. And on this crucial issue, Complainant did not present evidence of any of the indicators of pretext described above. She has not submitted any sworn statements from other witnesses or documents that contradict the explanations provided by S1 or which call his veracity into question. We therefore agree with the Agency that Complainant failed to establish the existence of an unlawful motive on the part S1 in changing her job shift, modifying her duties, or arranging for her to received training on the upgraded computer systems. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments 0120142806 4 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 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 January 6, 2016 Date Copy with citationCopy as parenthetical citation