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

Equal Employment Opportunity Commission

Aug 9, 2018

0120161445 (E.E.O.C. Aug. 9, 2018)

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

Kerry B.,1
Complainant,

v.

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

Appeal No. 0120161445

Agency No. 2015-26070-FAA-03

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 7, 2016, finding no discrimination
concerning his 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, we AFFIRM the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
an Air Traffic System Specialist (ATSS), FV-2101-12, at the Memphis
Navigation/Communication System Support Center, Memphis International Airport in Memphis,
Tennessee. On April 3, 2015, Complainant filed his complaint alleging discrimination based on
race (African American) when since 2010, and continuing to the present, he was subjected to a
hostile work environment in that:

(A) From in or about 2010 through 2013, he was not allowed to work an Instrument Landing
Systems (ILS) only workload;

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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(B) On or about February 27, 2012, he was falsely accused of not conducting ground checks
prior to a flight check of the “OOI” Localizer and on or about May 18, 2012, the same
individual falsely accused him of disabling shutdown alarms for the EXS Glide Scope;

(C) In or about May 2012, the District Manager pulled three of his certifications;

(D) On or about August 7, 2013, his flight form for a flight check was amended to read that
he was a trainee rather than a lead technician, and his supervisor refused to correct the
alteration of the flight form;

(E) From in or about May 2014 through October 2014, other employees were directed to
review his work to gather evidence for an investigation;

(F) He was wrongfully logged as having caused Continuity of Service (COS) outages on July
9, 2014, July 15, 2014, September 23, 2014, October 19, 2014, October 22, 2014, and
December 16, 2014;

(G) On or about July 19, 2014, July 20, 2014, October 19, 2014, and October 27, 2014, he
was required to work on his days off but was not compensated time and a half for that
work; in or about December 2014, he was not paid for work he performed on days he was
scheduled to have off;

(H) In or about February 2014, he was scheduled to go through fiber optic maintenance
school in August 2014, even though he had requested to attend the school at an earlier
time due to doctor’s appointments (his request was denied);

(I) In or about December 2014, he was informed that he would no longer train new
employees;

(J) On or about December 7, 2014, ten incorrect entries were entered in the Simplified
Automated Logging (SAL) System to reflect that he failed to accomplish certain tasks;

(K) On or about December 18, 2014, he was reprimanded for failing to depart the worksite;

(L) On or about February 22, 2015, he was scheduled to work overtime, but another worker
was brought in to do that work, and he was required to leave;

(M) On or about February 22, 2015, he was told that he would have only 35 days to
complete training on two pieces of equipment for which he was supposed to be allowed
six months of training for each;

(N) On or about March 11, 2015, he became aware that roads and grounds were added to his
workload; and
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(O) On or about March 30, 2015, he was informed that he would be demoted from his
position of Level 4 Technician, and would no longer perform work on the TSE (Total
System Error) Localizer or Glide Slope at the COS facility.

After completion of the investigation of the complaint, Complainant did not request a hearing
before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision
dismissing claims (A) – (E) and (H) due to untimely EEO Counselor contact and finding no
discrimination regarding claims (F), (G), and (I) – (O). Complainant appeals from the Agency’s
final decision.

ANALYSIS AND FINDINGS

Upon review, we find that the Agency properly dismissed claims (A) – (E) and (H) due to
untimely EEO Counselor contact. Specifically, the Agency indicated that the alleged incidents
in the subject claims occurred in or prior to October 2014, but Complainant did not contact an
EEO Counselor until December 20, 2014, which was beyond the 45-day time limit set by the
regulations. 29 C.F.R. § 1614.105(a)(1).

Furthermore, the Agency indicated that the dismissed claims involved Complainant’s former
supervisors S1 (September 2011 - September 2012), S2 (October 7, 2012 - April 20, 2014), S3
(April 20, 2014 - September 20, 2014), the District Manager, his coworkers, and his then
managers, whereas all the timely filed claims involved S4 who supervised Complainant from
October 2014 to present. Claim G, which in part involves S3, is a claim of discrete harm and
should be considered separately from the dismissed claims. On appeal, Complainant fails to
present adequate justification to warrant an extension of the applicable time limit for contacting
an EEO Counselor. Based on the foregoing, we find that the Agency properly dismissed claims
(A) – (E) and (H) due to untimely EEO Counselor contact. 29 C.F.R. § 1614.107(a)(2).

Turning to the remaining claims of the complaint, 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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. As an ATSS, Complainant’s duties involved working on
preventive and corrective maintenance of Instrument Landing Systems, Localizers (which
provide horizontal guidance) and Glide Scopes (which provide vertical guidance).
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Regarding claim (F), S4 stated that she did not recall Complainant as being logged as causing
COS damages at the relevant time at issue. There is no evidence that Complainant was subjected
to any adverse action as a result of the alleged incidents.

Regarding claim (G), S3 indicated that Complainant’s time and attendance record showed that on
July 19 and 20, 2014, he was on a regularly scheduled shift. S3 noted that the collective
bargaining agreement did allow for rotation changes for special circumstances especially when
the office was undergoing a technical evaluation (NASTEP). S3 stated that for Pay Period 16
(July 13 - 26, 2014), he approved 23 hours of overtime for Complainant; and from May 4, 2014,
to October 1, 2014, he approved 198.5 hours of overtime for him.

Complainant’s then supervisor (S4) indicated that she had no recollection of changing
Complainant’s days off or denying any overtime for him in October or December 2014. S4
stated that there was an incident where Complainant told S4 he had worked overtime while an
identified individual was acting for S4 while S4 was out. S4 stated that he told Complainant to
provide S4 with that specific date and told him to correct his time and attendance record because
he did not put in for his overtime, but Complainant failed to do so. Complainant acknowledges
that he did not submit his corrected time and attendance record for overtime at issue.

Complainant’s then manager stated that although he had no knowledge of Complainant’s time
and attendance, the office routinely provided a lot of overtime for its employees, including
Complainant.

Regarding claim (I), S4 indicated that he did not recall the incident. S4 noted that Complainant
was not assigned as anybody’s trainer at that time. Although Complainant indicates that he
trained an individual in the past, he does not indicate he was assigned to train anyone in
December 2014.

Regarding claim (J), S4 indicated that as a supervisor, S4 was required to review “TPRs, FRDs,
and Maintenance Logs” of S4’s employees, including Complainant, and to enter his comments
into the SAL System on what could be done better or what was missing. Complainant does not
claim that he was subjected to any disciplinary action as a result of S4’s action.

Regarding claim (K), Complainant claimed that on December 18, 2014, he was reprimanded for
failing to depart the worksite, i.e., failing to enter the SAL log to show his departure. However,
during the EEO investigation, he indicated that he did not know if the reprimand had been put in
writing. S4 denied Complainant was given any discussion/reprimand at that time. Complainant
indicates on appeal that S4 spoke to him critically about his failure to depart at that time.

Regarding claim (L), S4 did not recall the incident or deny overtime to Complainant.

Regarding claim (M), S4 indicated that she did not recall the incident or telling Complainant he
had a month to complete two directed study courses.
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Regarding claim (N), the record indicates that this assignment involved assessment of the road to
the sites, presence of the grass, state of the shelter, and use of the equipment to correct issues. S4
indicated that Complainant was already aware that the technicians, including Complainant, were
supposed to be doing the roads and grounds, including fire extinguishers. Complainant’s then
second level supervisor indicated that it was not uncommon for a 2101 ATSS, i.e.,
Complainant’s position, to maintain roads and grounds.

Regarding claim (O), S4 indicated that Complainant’s claim was not true and he was not
demoted as alleged. S4 stated that the employee, who was on detail to another office, returned to
the office after the detail ended and so S4 had to redistribute the workload to give that employee
some work to do. Specifically, S4 indicated that Complainant was assigned a workload,
including ILS, just like everyone else.

After a review of the record, we find that Complainant failed to show that some of the alleged
incidents occurred as alleged or that the Agency’s articulated reasons were a mere pretext for
discrimination. Regarding his claim of harassment, considering all the claims, including the
untimely claims, we find that Complainant failed to establish the severity of the conduct in
question or that it was related to any protected basis of discrimination. Based on the foregoing,
we find that Complainant has failed to show that the Agency’s action was motivated by
discrimination as he alleged.2

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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.

2 On appeal, Complainant raises other matters that are not related to claims at issue.
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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).
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FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 9, 2018
Date