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

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2020003104 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Annie F.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020003104 Agency No. 2018-28090-FAA-03 DECISION 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 February 7, 2020 final decision concerning her 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 At the time of events giving rise to this complaint, Complainant worked as an Airway Transportation System Specialist, FV-2101-J, with the Agency’s Air Traffic Organization. Complainant had been working at the Agency’s facility in Jacksonville, Florida as detached staff for the Technical Operational Training group. Her first-level supervisor was Manager of Technical Operations Training Programs Team (S1), and her second-line supervisor was the Deputy Director of Technical Training (S2). Complainant has since retired from federal service. Complainant was given an administrative relocation directive from the Director, Technical Training, that she was to be relocated to Washington, D.C. Complainant alleged she submitted a 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. 2020003104 2 request for a reassignment to Jacksonville, Florida, where she was already working as detached staff, due to hardship because of her daughter’s medical care. At Complainant’s request, the Agency delayed her directed reassignment to Washington D.C. three times in April-October 2018. She alleged she applied for a reassignment to either of two open positions in the Jacksonville District: Airway Transportation Systems Specialist (ATSS), National Airspace Systems (NAS), FV-2101-01, or the position of Automation/Radar ATSS, FV-2101-H. Complainant’s requests for reassignment were unsuccessful. Complainant clarified that S1 and S2 agreed to release her, but she needed to have a position in Jacksonville in order to release her. S1 stated Complainant did not apply for a hardship transfer but an Employee Requested Reassignment (ERR) and explained that while Complainant was qualified for an ERR, it was not guaranteed and was based on the availability of a position in the desired location. Complainant maintained that she followed the reassignment procedure for non- union employees in accordance with the Human Resources Policy Manual (HRPM). Complainant stated she was informed that in order to be considered for a position in Jacksonville, she needed to follow the Professional Aviation Safety Specialists (PASS) Contract procedure for reassignments, and that she was not currently on the PASS list. The Acting Manager at the Jacksonville SSC who was also the selecting official (SO1) for the Automation/Radar ATSS position informed Complainant that her request for reassignment was denied when she was not selected for Automation/Radar ATSS position. The Automation/Radar ATSS position was filled from a list of candidates requesting ERRs. SO1 stated Complainant submitted her ERR directly to him via email and he informed her that she was not selected for the Automation/Radar ATSS position. SO1 selected an individual (Selectee) with current certifications and experience that he could use immediately. On September 13, 2018, SO1 emailed his supervisor explaining his selection. Two candidates were not selected because they were Environmental ATSSs and could not provide him with immediate relief. Complainant did not hold any current certifications and did not have any recent experience; therefore, she did not provide immediate relief either. SO1 believed Complainant followed the application process correctly, and that she was considered for the position. Complainant acknowledged that her certifications in Radar, Communication, En Route and Automation were inactive but that noted that she developed and validated the job trainings and certification packages for various systems and had more than 15 years of experience in managing the acquisition, development, delivery and maintenance of En Route, Terminal and Oceanic Technical Operations Workforce Training. Complainant stated that she met the needs of the Agency because she was involved in the development of the training and certification requirements for most of the systems at the Jacksonville facility. With regard to the NAS position, the Supervisor for the Jacksonville ARTCC System Services Operation Control Center and the NAS position, was the selecting officer (SO2). Complainant stated she submitted her reassignment package to SO2 on July 7, 2018, because she knew SO2 had the vacant NAS position. SO2 asserted that HR determined the qualifications for open positions and HR did not refer Complainant for the ATSS NAS position. SO2 stated that Complainant was not referred for this position because she was not a bargaining unit employee, 2020003104 3 which was required for this position. The record indicates that the position had to be filled through the competitive process and in accordance with the PASS contract. On November 21, 2018, Complainant filed a formal complaint alleging that she was subjected to discrimination and a hostile work environment by the Agency on the bases of race (African- American), color (Black), sex (female). and age (YOB:1964) when on September 12, 2018, Complainant’s manager denied Complainant’s request to be released for a transfer to a new duty station.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 her to discrimination and harassment as alleged. The instant appeal followed CONTENTIONS ON APPEAL On appeal, Complainant argues among other things, that that the investigation was inadequate because the investigator did not verify the evidence in the record pertaining to Selectee’s certifications and whether proper procedure was followed. 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”). As an initial matter, Complainant claims on appeal that the investigation was inadequate and that the investigator failed to collect certain evidence that would support her claims. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. Complainant failed to request a hearing, a process which 2 Complainant clarified in her affidavit that she was not actually denied a release for a transfer; rather, she was not selected for reassignment for the two positions in Jacksonville at issue. Thus, this decision (as did the Agency’s final decision) will analyze the circumstances of her non- selection for those positions. 2020003104 4 would have afforded her the opportunity to conduct discovery and to cure alleged defects in the record. Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. 248, 256 (1981). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28. 1990): Peterson v. Dep’t of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination, the Commission finds that Complainant failed to present evidence to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions detailed above. As noted above, Complainant explained that she was not denied a release for a transfer, but instead was not selected for reassignment for the Jacksonville positions. Regarding the Automation/Radar position, SO1 considered Complainant as a candidate for the position but ultimately did not select her. As detailed above, SO1 informed his supervisor that of the four ERR candidates for the position, Selectee’s current certifications and experience provided the Agency with immediate relief. Complainant acknowledged that her certifications were inactive. Regarding the NAS position, SO2 stated HR did not refer Complainant for consideration for the position. The record reveals that the position was required to be filled through the bargaining unit in accordance with Article 82 or 83 of the PASS contract. Complainant states she submitted her requests for reassignment in accordance with the HRPM, not Article 82 of the PASS 2020003104 5 contract, which outlines different procedures. As a result, Complainant was not referred for further consideration for this position. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As 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. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. Aside from mere allegations and conclusory, Complainant has not shown that the Agency’s articulated reason for its actions were pretext for discrimination. Finally, to the extent that Complainant contends that she was subjected to a hostile work environment with respect to the matters herein, the Commission finds that a finding of a hostile work environment is precluded by the Commission's determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, the Commission finds that Complainant has not established that she 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, it is the decision of the Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of records does not establish that discrimination occurred. 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. 2020003104 6 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 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. 2020003104 7 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 May 24, 2021 Date