0120160851
04-19-2016
Lyman D.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lyman D.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120160851
Hearing No. 530-2012-00120X
Agency No. 2011-24038-FAA-01
DECISION
On December 7, 2015, Complainant filed an appeal from the Agency's November 16, 2015, final decision 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Front Line Manager at the Agency's Liberty Air Traffic Control Tower facility in Newark, New Jersey.
In October 2010, the District Manger was informed that Complainant was to be reassigned to a facility of his choice in the United States. The understanding was that Complainant would retain the same pay as he earned in Newark, New Jersey. The District Manager noted that if he went to a lower level facility, his pay would not go down. The District Manager passed along this information to the Air Traffic Manager (Manager).
The Manager was directed to reassign Complainant. The Manager stated that his understanding of the situation was that a white employee (Employee) within the building did not like Complainant. He heard that the Employee told Complainant to "shut the f-up and get out of my face" in response to Complainant giving the Employee an order. The Manager believed that Complainant's order was legal but the Employee was upset. To appease the Employee, management chose to move Complainant out of the building. The Manager, as well as other management officials, told Complainant that he would incur no loss of pay due to the reassignment. Complainant was provided with a choice of relocation facility within the United States and selected Orlando, Florida. On April 26, 2011, Complainant was informed that he would be reassigned effective May 8, 2011.
Following the reassignment, Complainant began receiving a lower salary due to the lower locality pay in Orlando as compared to Newark. Complainant submitted his Permanent Change in Station (PCS) package seeking to maintain the pay he received while working in Newark. Complainant was told that his request was not approved.
On June 24, 2011, Complainant contacted an EEO counselor alleging discrimination. When the matter was not resolved informally, Complainant was provided with a Notice of Right to File a Formal Complaint. On October 11, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for protesting "about workplace fairness" when, per his reassignment effective May 8, 2011, he was denied PCS funding, pay retention and controller incentive pay, all of which was promised to him.
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, but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency asserted that Complainant became aware of the transfer and the wage he would be receiving in April 2011. Therefore, the Agency found that Complainant's contact in June 2011 was beyond the 45 day time limit. In the alternative, the decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
This appeal followed.
ANALYSIS AND FINDINGS
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, at Chapter 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").
Untimeliness
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
Although Complainant had been informed that he would be reassigned out of Newark, he was told by management that he would not lose any pay. Regardless when he was given an SF-50 form providing him with lower pay, Complainant took steps to retain his Newark pay as promised by management. When his requests were denied, he contacted an EEO counselor on June 24, 2011. The Commission has previously held that the Agency may not dismiss a complaint based on a Complainant's untimeliness, if that untimeliness is caused by the Agency's action in misleading or misinforming Complainant. See Wilkinson v. U.S. Postal Serv., EEOC Request No. 05950205 (March 26, 1996); see also Elijah v. Dep't. of the Army, EEOC Request No. 05950632 (Mach. 29, 1996) (if Agency officials misled Complainant into waiting to initiate EEO counseling, Agency must extend time limit for contacting EEO counselor). Based on the record before us, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. �1614.107(a)(2) was not appropriate. Therefore, we turn to the Agency final decision finding no discrimination.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Cent. v. Hicks, 509 U.S. 502 (1993).
In order to establish a prima facie case, Complainant must demonstrate that: (1) he is a member of a protected class, (2) he was subjected to adverse treatment, and (3) he was treated differently than otherwise similarly situated employees outside of his protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003); Ornelas v. Dep't. of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002).
Upon review of the record, we find that Complainant has failed to establish a prima facie case of discrimination based on race and/or sex. Complainant failed to show that others outside of his classes were treated differently. Specifically, Complainant has not shown that others who were transferred were permitted to maintain their pay following a reassignment. Much of the record indicated that the Employee created the need for the reassignment of Complainant. However, the issue of the actual decision to reassign Complainant is not before us. The issue raised by Complainant was the Agency's failure to keep its promise of maintaining his pay despite his reassignment. Upon review, we determine that Complainant failed to provide any evidence which would reasonably give rise to an inference of discrimination that the decisions regarding his pay were related to his race and/or his sex. As such, we conclude that Complainant did not establish a prima facie case of discrimination based on race and/or sex.
To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v, Dep't. of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse action followed the protected activity within such a period of time and in such a manner that a reprisal motive may be inferred. Simens v. Dep't. of Justice, EEOC Request No. 05950113 (Mar. 28, 1996).
Complainant asserted that he was subjected to unlawful retaliation. In support of his claim, Complainant indicated that he protested about "workplace fairness from the beginning." In essence, Complainant claimed that he engaged in opposition activity. The anti-retaliation provisions make it unlawful to discriminate against an individual because he has opposed any practice made unlawful under the employment discrimination statutes. This protection applies if an individual explicitly or implicitly communicates to his employer or other covered entity a belief that its activity constitutes a form of employment discrimination that is covered by any of the statutes enforced by the EEOC. See EEOC Compliance Manual "Retaliation" EEOC Notice Number 915.003, 8-3 (May 20, 1998). We note that Complainant did not provide any additional information beyond this statement and failed to elaborate on his use of the term "fairness." Based on the record before us, we cannot find that Complainant has shown that he engaged in "opposition activity" and, as such, he has not established the first prong of a prima facie case of unlawful retaliation. Further, Complainant did not provide any information to show a nexus between his alleged protected activity and the Agency's failure to maintain his Newark pay when he was reassigned to Orlando. Therefore, based on the record at hand, we conclude that Complainant has not shown that a prima facie case of unlawful retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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 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
April 19, 2016
__________________
Date
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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