[Redacted], Alvin S., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Jun 30, 2021

Appeal No. 2020003270 (E.E.O.C. Jun. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alvin S.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020003270 Agency No. 2018-27999-FAA-02 DECISION On April 29, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 30, 2020 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Legal Information Officer, 1410-J, for the Agency’s Office of Chief Counsel (OCC), Administrative Services (AGC-10) in Washington D.C. Complainant has worked in this position since July 30, 2000. Complainant stated that in November 2016, he was detailed to the Office of Finance and Management and Property Management (ARO-3) until he could be permanently transferred to ARO-3. However, as a result of a reorganization, Complainant returned to his original position. Upon his return, in July 2017, Complainant claimed that his first and second-level supervisors (S1 and S2) assigned him to a cubicle in the receptionist space while private offices were built for lower-graded, non-white administrative staff. Complainant further alleged that he was the only OCC employee assigned to a cubicle. S2 explained that Complainant was the only Librarian employed by AGC, that Complainant had never had a private office while serving as 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. 2020003270 2 the Librarian, and his current location in a cubicle in the library was consistent with his prior workspace and in accordance with the collective bargaining agreement. S2 noted that the Librarian and Historian were the only employees assigned workspace in the library and the Historian was assigned to the office because her work required her to conduct research and maintain the archives. By contrast, Complainant’s duties as a Librarian included day-to-day interaction with library users and placing the Librarian in the cubicle made it easier for library users to interact with the Librarian when they require the Librarian’s services. S1 concurred that Complainant was assigned to a cubicle before going on detail and working out of a cubicle was most conducive to his duties. Additionally, Complainant alleged that S1 and S2 downsized the library in April 2018. Complainant stated that management removed many law books to open up window space for other employees. Complainant affirmed that he and the Union challenged Agency management’s removal of the books and the decision to move the library to a smaller space. S1 and S2 denied that the library had been downsized since November 2017 and affirmed that the contents of the library were at the discretion of management. Both noted that much of the legal information had been migrated to electronic form and that the amount of information managed by the Librarian has grown significantly as a result. In addition, library materials were discarded in accordance with the applicable policies and procedures. Complainant alleged that on October 31, 2018, S1 issued him his annual performance plan which dramatically changed his job duties and were inconsistent with his 1410 job series. Complainant claimed that he was told that he would perform back-up duties as controlled correspondence clerk, emergency planner, and a CLE credit coordinator as well as maintain his regular duties. S1 explained that Complainant only wanted Librarian duties; however, based on his training and skills as a research and writer, he could perform other duties that would help the Agency. S2 added that Complainant was qualified to perform duties beyond his narrow Librarian duties and that S1 followed the applicable Agency policies and collective bargaining agreement in issuing the performance plan. S2 stated that Complainant often expressed that S1 was not capable of providing him work assignments and that he believed he should work with no managerial oversight. On December 10, 2018 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of race (Caucasian), color (white), and age (YOB 1940) when: l. In July 2017, his first-level supervisor (S1) and second-level supervisor (S2) gave Complainant a cubicle and gave private offices to the younger, lower-graded, non-white, administrative staff; 2. In April 2018, S1 and S2 downsized the law library without Complainant’s input and discarded materials he needed in order to perform his duties; 2020003270 3 3. On or about October 31, 2018, Complainant was given a performance plan that contained expectations that are inconsistent with his position description and job series, and he was denied an explanation regarding the discrepancy; and 4. On or about November 27, 2016, AGC detailed Complainant to the Office of Finance and Management Regions and Property Management (ARO-3).2 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). The Agency issued a final agency decision pursuant to 29 C.F.R. § 1614.110(b) finding that Complainant was not subjected to discrimination or a hostile work environment. On appeal, Complainant contends that the totality of the incidents demonstrates that he was subjected to a discriminatory hostile work environment and that the Agency failed to analyze his complaint as a whole. Complainant argues that the Agency’s decision disregards the evidence he submitted and based its conclusions primarily on management’s statements. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). Hostile Work Environment To establish a hostile work environment claim, 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 2 The Agency dismissed an additional claim for failure to state a claim. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the dismissal. 2020003270 4 alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv. Inc., 523 U.S. 75, 81 (1998). Therefore, to prove his harassment claim, Complainant must establish 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 conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself Here, Complainant asserted that based on his protected classes, management officials subjected him to a hostile work environment. However, the Commission finds that the totality of the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory animus played a role in any of the Agency’s actions. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. Concerning incidents (1), (2), and (4), S1 and S2 explained Complainant has never had a private office while serving as the Librarian. Complainant was detailed because the Chief Counsel at the time decided to transfer the library function to the ARO-3 and a memorandum of agreement was signed in 2016. S1 explained the base transfer of the two positions required detailing the Complainant and the Historian to ARO-3 for a period of two years. While the Complainant was on detail to ARO-3, the library was redesigned to meet the Agency’s space requirements. Eventually, the Agency decided to retain the Librarian and Historian function in AGC. Management explained the new library location was redesigned to include one office for the Historian and a cubicle space for the Librarian consistent with Agency policy and the collective bargaining agreement. Complainant had been in a cubicle setting conducive to a Librarian before he went on detail and after he returned from detail. The office in the library was assigned to the Historian because her work required her to conduct Agency research and manage the archives, and she did not have day-to-day interactions with library users. Management explained that much of the legal information and resources were now available online or digitally and downsized in accordance with the Agency’s policies and procedures. S2 stated that the Complainant was informed of the Agency’s decision to downsize the library, and that the contents of the library were in the discretion of AGC management. Regarding incident (3), S1 stated Complainant’s performance plan articulated specific performance outcomes and expectations relevant to his position description and job series, and that all Agency employees’ performance was tracked against their performance plans. S1 and S2 both believed Complainant’s skills and background were valuable to the Agency and he could 2020003270 5 augment the growing professional needs of AGC and fulfill the mission of the Agency. S2 explained that Complainant believed S1 was not capable of determining his work or providing work assignments and he suggested that he should work with no managerial oversight. S2 stated S1 was capable of determining what was in the best interest of the Agency’s mission and how to utilize the personnel resources under her direction to accomplish the mission, and that she had followed all requirements of the Agency performance program and the collective bargaining agreement in developing Complainant's 2018 performance plan. Because Complainant chose not to request 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. Complainant presented no evidence, other than subjective beliefs and assertions, that the actions complained of were taken because of his protected classes. Such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). Thus, the Commission concludes that Complainant has not presented evidence sufficient to prove that he was subjected to discrimination or a hostile work environment 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 Agency's final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at 2020003270 6 https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020003270 7 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 June 30, 2021 Date