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

Equal Employment Opportunity Commission

Nov 7, 2018

0120171767 (E.E.O.C. Nov. 7, 2018)

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

Franchesca V.,1
Complainant,

v.

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

Appeal No. 0120171767

Hearing No. 560-2015-00256X

Agency No. DOT201526045FAA05

DECISION

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 March 21, 2017, final
order 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. For the following reasons, the Commission AFFIRMS the Agency’s
final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Communications
Specialist, G band, AMK-12, in the Customer Relationship Management Branch of the
Enterprise Services Center, at the Agency's Mike Monroney Aeronautical Center facility in
Oklahoma City, Oklahoma. Complainant was appointed to a temporary position and was
scheduled to return to her permanent position in May 2015, as a Quality Specialist, F band,
AMK-223C.

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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On February 23, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when she was issued a notice of
delinquency.2

At the conclusion of the investigation, Complainant requested a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Over Complainant's
objections, the AJ assigned to the case granted the Agency’s December 7, 2015, motion for a
decision without a hearing and issued a decision without a hearing on March 6, 2017. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged. Complainant appealed.

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). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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.

In the instant case, the AJ granted Agency’s Motion for Summary Judgment/Judgment of the
Pleadings and found that Complainant failed to establish that she was subjected to a hostile work
environment or discrimination. To prevail in a disparate treatment claim, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas

2 Complainant’s nonselection for promotion based on race (African-American) claim was
subsumed with a pending class action against the Agency. See Complainant, et al. v. Department
of Transportation, EEOC Appeal No. 01A40442 (Sep. 28, 2005). In that case, the Commission
certified a class that encompassed African-American employees employed by the FAA at the
Mike Monroney Aeronautical Center in permanent positions during the period of November 1,
1997 to present, who were denied competitive and/or noncompetitive promotion to a GS-5 or
higher position due to the disparate impact of subjective promotion practices. The AJ in the class
action case was informed of Complainant’s claim and that class action is still pending before an
AJ in EEOC Hearing No. 310-1999-05681X. Thus, the nonselection claim will not be
considered in this decision.
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Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by
demonstrating that she was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The burden then shifts to the Agency to articulate a legitimate, non-discriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that
the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133 (2000). Additionally, to establish a prima facie case of reprisal Complainant must show
that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists
between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of
discrimination on alleged bases, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions and no nexus existed between her previous EEO filings
and any adverse treatment. It is undisputed by all parties that after Complainant was not selected
for a promotion, she told a coworker that Selectee was not as qualified as Complainant, had not
graduated high school, and only had a general education degree (GED). The coworker was not
Complainant’s supervisor or an EEO counselor. After learning that Complainant had been telling
her colleague this information, Selectee filed a complaint against Complainant with her
supervisor, the Agency’s Legal Office, and Human Resources. An HR employee drafted a Notice
of Delinquency and issued it to Complainant. The Agency explained that a Notice of
Delinquency is an investigative tool used to address allegations by another employee or
management. The notice gives the accused the opportunity to tell their side of the story and it has
no adverse effect unless disciplinary action follows. It is undisputed that in this case, no
disciplinary action was taken. The Agency stated the Notice of Delinquency was based on
allegations made by one employee to another, not on Complainant’s race or prior EEO activity.

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing. Upon review, the AJ found and we agree that Complainant
was not subjected to discriminatory harassment. Complainant failed to establish that any actions
taken by the Agency were related to any protected basis of discrimination. Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as she alleged.

CONCLUSION

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

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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 (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.
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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

November 7, 2018
Date