Keenan O,1 Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Dec 13, 2016

0120140046 (E.E.O.C. Dec. 13, 2016)

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

Keenan O,1
Complainant,

v.

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

Appeal No. 0120140046

Hearing Nos. 450-2012-0093X,
450-2012-0095X

Agency Nos. 2011-24021-FAA05,
2011-23838-FAA-05

DECISION

On September 13, 2013, Complainant filed an appeal from the Agency’s August 14, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Aerospace
Engineer at the Federal Aviation Administration (FAA), Southwest Region, ASW100, Aircraft
Certification Service, Rotorcraft Directorate, in Fort Worth, Texas. The Aircraft Certification
Service is responsible for: “administering safety standards governing the design, production,
and airworthiness of civil aeronautical products; overseeing design, production, and
airworthiness certification programs to ensure compliance with prescribed safety standards;
providing a safety performance management system to ensure continued operational safety of

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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aircraft; and, working with aviation authorities, manufacturers, and other stakeholders to help
them successfully improve the safety of the international air transportation system.”2

On September 12, 2011, and May 17, 2012, Complainant filed EEO complaints alleging that
the Agency discriminated against him on the bases of race (African-American), color (dark
complexion), and in reprisal for prior protected EEO activity when: (1) on or about April 25,
2011, he received an unwarranted mid-term evaluation that contained negative items and unfair
expectations; he was belittled for using overtime and compensatory time; and he was described
as being rigid; (2) on or about January 12, 2011, he learned that he was not selected for the
position of Aerospace Engineer, Series 861, FV-J.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing on December 18, 19, and 20, 2012, and issued a decision on August 5,
2013. 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.

FACTUAL BACKGROUND

Mid-term Review

Complainant alleges that his mid-term evaluation was not warranted. He states that data
reviews and memoranda preparation were performed similarly to other employees and similar
to what he has done in the past. Complainant states that he should not be expected to complete
an “impossible” task such as bringing a particular applicant company’s production system or
engineering system within compliance. He believes that other FAA specialists are not tasked
with bringing an applicant’s production system or engineering system into compliance. He
states that it is the applicant’s responsibility to show compliance, and not the responsibility of
the FAA specialist.

Non-Selection

During the time frame in issue, Complainant held his position for six years and had been
employed by the Agency for nine years. Complainant states that he has over 18 years of
experience in industry and the federal government as a project engineer. He states that he has
led various private and government ventures to completion such as constructing homes,
managing electrical accounts for oil and gas companies, FAA project engineer, FAA
Organizational Management Team lead, and maintaining an electrical license. He further
states that he has a Master's Degree in Managerial Economics that gives him the special
educational tools to manage humans, equipment and financial resources. Complainant also

2 See https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/Air/.
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states that he was not interviewed for the position, but was notified by the selecting official
(S2) of his non-selection.

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. 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 EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

The AJ concluded that Complainant’s allegations were without merit as the evidence
demonstrated that the Agency had legitimate non-discriminatory reasons for both the selection
it made and the mid-term evaluation. In regards to the Aerospace Engineer selection, the
selecting official (S2), who, at one time, was the first-line supervisor for both Complainant and
the selectee, stated that he selected the best qualified person for the position because of his
experience. While Complainant offered detailed testimony regarding his belief that he was
more qualified than the selectee in this case, the AJ concluded that Complainant did not
establish that his qualifications were observably superior to that of the selectee, or that the
selecting official’s reasons for Complainant’s non-selection were pretext or otherwise
motivated by discriminatory or retaliatory animus.

With respect to the performance evaluation at issue, the AJ concluded that the evidence showed
that all employees similarly situated to Complainant were subject to mid-term evaluations
measured against expectations set for the year, the goal of which was to determine both
positive and negative critiques based on observations by the supervisor. The Agency stated
that while employees have various strengths and weaknesses making the evaluation different
for each employee, the process used is the same. The AJ concluded that Complainant had not
established that S1’s reasons for the comments in the mid-term review were a pretext for
discrimination/retaliation. The evidence established that the comments in Complainant’s mid-
year review, although more extensive than those of his peers, addressed the issues with a
particular applicant company that Complainant was assigned. The AJ noted that there was no
evidence that others were working with equally difficult applicants with similar issues during
this time-period which would have warranted more extensive comments in their mid-term
reviews. Further, the AJ found that there was no evidence that other employees used
compensatory time for training and thus there was no comment in their midterm regarding that
issue.
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We find that substantial evidence in the record supports the AJ’s findings and conclusions. We
also note that there is insufficient evidence of discriminatory or retaliatory animus on the part
of either responsible management official which would establish that Complainant was
discriminated against as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the AJ’s decision finding that Complainant did not
establish that he was discriminated against, and the Agency’s final order implementing that
decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests 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 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
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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

December 13, 2016
Date