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

Equal Employment Opportunity Commission

Apr 27, 2018

0120160372 (E.E.O.C. Apr. 27, 2018)

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

Nelson R.,1
Complainant,

v.

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

Appeal No. 0120160372

Hearing No. 560-2015-00075X

Agency No. 2014-25651-FAA-05

DECISION

On November 17, 2015, 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
October 20, 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as an Employment Services Branch Manager, Occupational Series 0201, Pay
Band J, at the Agency’s Office of Human Resource Management in Kansas City, Missouri. On
May 28, 2014, Complainant filed an EEO complaint in which he alleged that the Director of the
Human Resources Office, his first-line supervisor (S1), subjected him to a hostile work
environment because of his race (African-American), sex (male), color (Black), and age (54) in
connection with the following incidents that occurred between October 2013 and April 2014:

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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A. Since being named the Acting Human Resources (HR) Regional Manager in October 2013,
he has not received additional compensation for the extra duties that he is performing,
although female Acting HR Regional Managers have received additional compensation.

B. S1 refused to respond to his requests to identify his role and her expectations of his position;
S1 refused to communicate with him and provide feedback and guidance; in December
2013, during a site visit conducted by S1, she slighted him by barely communicating with
him during her visit.

C. In January 2014, S1 told Complainant that he would only receive an Organizational
Success Increase (OSI) in pay; when he asked what he needed to do to receive a Superior
Contribution Increase (SCI) in pay, S1 responded that she didn’t know, but that he should
know what he needed to earn an SCI.

D. In January 2014, during a visit conducted by S1, S1 refused to discuss the Accountability
Board (AB) investigation that had been brought against him.

E. As part of the AB investigation that had been brought against him, Complainant’s computer
was confiscated.

F. An inspection of Complainant’s computer revealed that he made over 2,000 transactions
on his work computer to a dating website during a three-month period, which was
considered to be “excessive” by management; he denies that his personal transactions on
his work computer were excessive and claims that they are in compliance with the
Agency’s policies and procedures.

G. In February 2014, S1 presented him with a proposed letter of reprimand for excessive non-
governmental internet use; and on March 21, 2014, he was notified that a Letter of
Reprimand had been placed in his electronic Official Personnel File.

H. On an unspecified date, S1 accused Complainant of misconduct for allegedly cursing and
having inappropriate conversations in his office.

I. In April 2014, the performance award nominations that he submitted for three members of
his staff were denied, and he was denied a performance award as well.

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 EEOC 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 concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

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Incident (A): Complainant maintained that Employee Service Managers like himself who assumed
the responsibilities of a Regional Director on a long-term basis were entitled to receive additional
compensation during the time that they were acting in such a position. Complainant averred that
female acting regional Human Resource Regional Managers had received additional compensation
under circumstances similar to his between 2013 and 2014. S1, a 51-year-old Black female,
responded that the new duties that Complainant was asked to perform as the Acting Human
Resource Regional Manager were not outside of the scope of his pay band, and consequently did
not warrant additional compensation. She averred that Complainant was only asked to attend
regional management team meetings, share pertinent information from those meetings with other
managers and staff, and to dial into her Monday leadership meetings and Wednesday human
resource director teleconferences. She averred that the Regional HR Manager was a J-Band
position, which was equivalent to a GS-14 in the General Schedule. She noted that this was the
same as Complainant’s nominal position as an Employee Services Manager. S1 also averred there
was no policy that required that employees performing higher-level work be given temporary
promotions, and that Complainant’s duties as the Acting Human Resources Regional Manager
were no different than those of the sole permanent Human Resources Regional Manager, whose
position was also located in the J Band. In addition. S1 averred that although there were no female
employees appointed as acting Human Resources Regional Managers, there was a female
appointed as an acting Regional Human Resources Director, a position located in the K-band,
which was equivalent to GS-15. S1 stated that this situation did not involve a female receiving a
temporary promotion or additional compensation. A Management and Program Analyst in the
Regional Human Resources Service Division averred that no policy exists for awarding
compensation for extra duties while in an acting position, and that Complainant did not perform
budget-related activities or any other duties that would justify higher compensation.

Incident (B): Complainant averred that since he began reporting to S1 in October 2013, she refused
to respond to his questions regarding his development and her expectations. He averred that he
had sent her emails on numerous occasions raising these issues but never received a response. In
particular he averred that while on a site visit to the facility in December 2013, she refused to
answer his questions about what it would take to receive a higher performance rating. He also
averred that in January 2014, she refused to discuss with him how their professional relationship
could improve. In response, S1 denied refusing to respond to Complainant’s feedback requests,
refusing to communicate with him, or slighting him during her December 2013 site visit. She
stated that her primary purpose for the visit was to focus on how staff within the facility interacted
with customers. Email strings dated between October 21, 2013 and April 30, 2014 indicate that
there was extensive correspondence between Complainant and S1 which related to the issue of
identifying Complainant’s role and expectations of his position. S1 had provided guidance to
Complainant numerous times.

Incident (C): Complainant averred that in January 2014, S1 did not give him as high a performance
award as he expected. He stated that S1 had told him that she had just become his director and
was not given any information from his previous director. He maintained that his group had
exceeded all of its performance metrics and had detailed as much in his self-appraisal. He also
averred that when he asked her what he needed to do in order to receive a higher rating for the next
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year, she replied that she could not tell him and that she had no advice for him about receiving
higher ratings in the future. S1 responded that she told Complainant that his former director had
retired on November 30, 2013, and had not performed a close-out appraisal. She stated that as a
result, the only rating she could assume he warranted was a “Meets Expectations” rating, which
was enough to justify an OSI award. She averred that she had no information from which to judge
his performance other than from peripheral information.

Incident (D): Complainant averred that in January 2014, when he requested time to discuss with
S1 the AB’s complaint against him and a coworker, S1 had told him that she was not going to
discuss anything regarding the AB investigation. He averred that he sent her an email requesting
feedback about the investigation, but that she failed to respond. S1 responded that she advised
Complainant that she had no feedback to share with him. She averred that this was different than
refusing to discuss the investigation with him. She explained that she was waiting for direction
from the Employee Relations Office on the next steps that needed to be taken. She also averred
that Complainant shook a pen in her face and asked why she had not given him any feedback on
the investigation. She asserted that she felt threatened and asked him to put the pen down and
repeated that she did not have an update to provide to him at that time. In response to a notice
dated January 13, 2014, and addressed to him, Complainant acknowledged that an allegation of
misconduct had been made against him and the specifics of that allegation were explained to him.
The notice also stated that no determination of the validity of the allegations had been made, that
the allegation would be investigated, and that he would be given an opportunity to give a statement
before any final determination would made.

Incident (E): Complaint averred that as part of the AB investigation, his laptop was confiscated.
He averred that as he entered his office, he found two members of the Agency’s security staff
removing his laptop, and that when he asked them why his computer was being taken, they told
him that S1 had requested it. The coworker who was being investigated with Complainant likewise
had his computer confiscated. Complainant acknowledged, however that the confiscation of his
computer was part of the AB investigation. S1 averred that the confiscation of Complainant’s
computer occurred as a separate investigation facilitated through the security office at the direction
of the Deputy Assistant Administrator for Human Resources, who was Complainant’s second-line
supervisor (S2). S1 explained that this was reportedly because the allegations brought by the AB
included comments about Complainant using his work computer to access online dating sites. She
stated that the security office reportedly confiscated his computer in order to perform a forensics
analysis to determine if, in fact, online dating websites had been accessed from his government-
owned laptop. She maintained that the inspection of Complainant’s computer was based strictly
on suspicion that he may have used his computer to access online dating websites.

Incident (F): Complainant averred that the inspection of his computer by the AB had resulted in a
finding that he had made over 2,000 transactions on his work computer to dating websites during
a three-month period, and that S1 formally reprimanded him for excessive non-government use on
a government-owned computer. Complaint denied that his personal transactions on his work
computer were excessive and maintained that his personal computer usage was in compliance with
Agency policy and procedures. He averred that S1 refused to share with him the standards that
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she used to determine that his use was excessive. Complainant did not deny that he visited dating
sites but stated that because of S1’s refusal to let him see the documentation of the forensic
evaluation of his laptop, he could not confirm or deny the number of transactions that the
evaluation had revealed. He maintained that visits to those websites were personal and appropriate
per Agency and Department policies governing internet usage. S1 explained that the forensics
analysis conducted by the security office indicated that there were over 2,000 transactions to dating
websites that had occurred between November 1, 2013 and January 27, 2014. She averred that the
Agency’s policy on internet usage allowed for limited use of government-owned computers for
personal purposes. She also averred that when broken down over the three-month time frame,
Complainant’s computer usage amounted to 38 transactions per day over a span of 53 to 58
workdays. S1 further pointed out that, as a manager, Complainant was held to a higher standard
of conduct and integrity, and that his conduct, extensive personal use of government computers,
did not meet those standards. The Agency’s Order No. 1320-79A, which pertains to internet use
policy, allows for internet resources to be used for limited personal use, and gives as examples
brief communications and searches. The order further states that such personal use must not, in
pertinent part, interfere with the user’s employment or other obligations to the government.

Incident (G): Complainant averred that presenting him with a proposed reprimand and the
eventual placement of the reprimand in his Official Personnel File constituted a further act of
discrimination on the part of S1. S1 averred that she issued Complainant a reprimand for violating
various sections of the Agency’s employee relations manual, which included the Agency’s internet
use policy. As justification for the reprimand, S1 cited the volume of his personal transactions,
his ineffective management of his staff due to his own engagement of personal activity on the job,
and his missing key deadlines as a result. S1 averred that this negatively impacted the pay of two
new employees, and noted that if Complainant had been more attentive to his manager duties, he
could have provided the direction needed to ensure that his staff processed their work in a timely
manner. She maintained that the reprimand was based strictly on Complainant’s violations of
standards of conduct. The letter of reprimand dated March 6, 2014, stated that Complainant was
being officially reprimanded for excessive non-government use on a government-owned computer
and included as a reference the 2,000 transactions that had occurred between November 1, 2013
and January 27, 2014.

Incident (H): Complainant averred that in January 2014, when S1 called to tell him that he and
his coworker were being investigated by the AB, S1 told him that he and the coworker were having
inappropriate conversations in their offices. Complainant denied that those conversations were
inappropriate. S1 responded that the AB allegation did not indicate that Complainant had been
cursing. She averred that someone alleged that Complainant was having inappropriate
conversations in his office. She states that she was required to notify Complainant that a complaint
had been filed against him and she had assigned the AB point of contact to conduct a management
inquiry to ensure neutrality. S1 averred that when she notified Complainant of the complaint, he
admitted to some of the alleged behavior. She maintained that she was following the rules
regarding misconduct.

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Incident (I): Complainant averred that in April 2014 the performance awards he submitted for
three members of his staff were denied by S1, and that he was denied a performance award as well.
S1 acknowledged that the performance awards for Complainant and his employees were denied.
She averred that this occurred in part, because the award nominations that Complainant submitted
for his staff were for activities that were not considered extraordinary. S1 also averred that it is
not a common practice for employees to self-nominate, and she opined that it would have been
contradictory to give an award to an employee one month after issuing that same employee a letter
of reprimand.

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”).

To establish a claim of discriminatory harassment, Complainant must show that: (1) he belongs to
a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based on
his statutorily protected classes; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[Complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

To ultimately prevail on his harassment claim, Complainant must show that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the incidents occurred because of a protected basis. Only if Complainant satisfies his burden of
proof with respect to both of these elements, motive and hostility, will the question of Agency
liability for discriminatory harassment present itself.

Regarding incident (A), S1 stated that in his position of acting Human Resource Regional
Manager, Complainant was not performing duties that exceeded his pay band, and that even if he
were, it fell within management’s discretion to authorize higher pay. Concerning incident (B), S1
maintained that she provided Complainant with extensive feedback between October 2013 and
January 2014, as evidenced by their email correspondence. With respect to incident (C), S1 averred
that she based her rating, and Complainant’s receipt of an OSI award, on her assessment of his
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performance during the limited time he had been under her supervision, since his previous
supervisor did not provide a close-out appraisal. Incidents (D) through (G) were all related to the
investigation of what the Agency characterized as Complainant’s excessive use of his government
computer for personal purposes. According to S1, Complainant was informed of the pending
investigation, his laptop was examined as part of that investigation, and he received an official
reprimand as a result of the investigation, which had revealed the presence of 2,000 personal
transactions on his computer incurred between November 1, 2013, and January 27, 2014. As to
incident (H), S1 stated that in informing Complainant about a report that he was engaged in
inappropriate conversations, she was merely following established protocols regarding potential
misconduct. With regard to incident (I), S1 stated that neither Complainant’s performance nor the
performance of his subordinates merited a performance award.

To satisfy his claim of discriminatory harassment, Complainant must show that in taking these
actions, S1 relied on considerations of his race, sex, color, or age that are expressly proscribed by
Title VII and the ADEA. See Aldaberto P. v. Dept. of Veterans Affairs, EEOC Appeal No.
0120142387 (Mar. 29, 2016). To do so, Complainant would have to expose weaknesses,
inconsistencies, or contradictions in S1’s explanations for the various incidents to such an extent
that a reasonable fact finder could rationally find those explanations unworthy of credence. See
Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for
reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). Indicators of unlawful
intent include discriminatory statements or past personal treatment attributable to those responsible
for the personnel action that led to the filing of the complaint, comparative or statistical data
revealing differences in treatment across various protected-group 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. U.S. Postal Serv.,
EEOC Appeal No. 0120141697 (Nov. 12, 2015).

On appeal, Complainant contends that the Agency improperly discounted and ignored the sworn
statement provided by his coworker, a 50-year-old Black male Senior Labor and Employee
Relations Specialist, and that had the Agency considered the coworker’s affidavit, it would have
uncovered the existence of a discriminatory motive on the part of S1. We do not agree. With
respect to incidents (A) and (C) through (H), while the coworker opined that what had happened
to Complainant was the result of discrimination, he admitted that he had no first-hand knowledge
of any of the incidents. He was merely basing his opinion on what Complainant had told him
regarding his interactions with S1. In addition, the coworker was also investigated by the AB,
which would call his credibility into question. As Complainant chose to withdraw his request for
a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility
determinations after a hearing. Therefore, the Commission can only evaluate the facts based on
the weight of the evidence presented. Beyond the affidavits of himself and his coworker,
Complainant has not presented affidavits, declarations, or unsworn statements from other
witnesses nor documents that contradict the explanations provided by S1 or call her veracity into
question. We therefore find, as did the Agency, that Complainant has not established the existence
of a discriminatory motive on S1’s part with respect to any of the incidents at issue.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision finding that Complainant did not establish that he was discriminated against as
alleged.

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
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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 27, 2018
Date