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

Equal Employment Opportunity Commission

Jul 28, 2021

Appeal No. 2020002187 (E.E.O.C. Jul. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brad M.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020002187 Agency No. 201828057FAA03 DECISION Complainant appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from a December 20, 2019 Final Agency Decision (“FAD”) concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Supervisory Air Traffic Control Specialist, FV-15, at the Atlanta Air Traffic Control Tower (“ATCT”) in Atlanta, Georgia. On October 12, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment/harassment on the bases of race/national origin (Hispanic/Honduran) and reprisal (prior protected EEO activity)2 when: 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. 2 2017-27155-FAA-03 2020002187 2 A. In January 2018, he was assigned to manage a difficult employee, despite being a new supervisor, B. On March 22, 2018, he was removed from the Local Safety Council, without explanation, C. In June 2018, his supervisor responded to his request for performance feedback by laughing and stating that she would discuss it with him later because she did not want to ruin his day, D. On August 22, 2018, his supervisor verbally degraded him for his performance in a printer closet, and on August 30, 2018, he was offered an Opportunity to Demonstrate Performance (“ODP”), E. From September 7, 2018, through October 25, 2018, Management did not discuss performance with him following his completion of a supervisory probation period, F. On unspecified dates, his supervisor continually criticized him and threatened to demote him, G. On unspecified dates, he was not allowed to serve as the tower simulator evaluator, H. On an unspecified date, he received a negative Performance Record of Conversation (“PROC”) “to de-combine positions” situations earlier, and, I. On October 25, 2018, he was placed on an ODP. The record developed during the investigation provides the following relevant facts. On September 7, 2017 Complainant was promoted to the position of Supervisory Air Traffic Control Specialist, AT-2152-LJ/Operations Supervisor/Frontline Manager (“FLM”) subject to a one-year probationary period. Complainant reported to a Supervisory Air Traffic Control Specialist, AT-2152-LK/Operations Manager (“M1,” African American, United States). Complainant’s second level supervisor was the Air Traffic Manager for Atlanta, AT- 2152/Deputy Director (“D1,” other/mixed race, United States). In January 2018, Complainant was assigned multiple direct reports, all bargaining unit employees who bid on schedules through the Union. Complainant described one of his direct reports as a “difficult employee.” Complainant’s colleague (“C1,” African American, United States), also an FLM, AT-2152-LJ, testified that from her experience, this employee was one of multiple “difficult” employees, who “harassed” supervisors. 2020002187 3 Although M1, M2 and D1 declined to describe any employee as “difficult,” M1 mentioned that “upper management discussed [the difficult employee] collectively.” In February 2018, the “difficult employee” was removed from Complainant’s team, assigned to another supervisor and given administrative duties. Notably, M1, M2, D1 and C1 all agree that the “difficult employee’s” placement with Complainant was not intentional. Under the collective bargaining agreement, Management had no control over scheduling for a Bargaining Unit employee. An FLM’s team was comprised of bargaining unit employees who bid on schedules that aligned with their schedules (also based on seniority), as opposed to assignments by Management. In or around March 2018, Complainant was assigned to a different supervisor (“M2,” African American, United States) for the remainder of the relevant time frame. According to M1, M2 “advocated” for Complainant, and became Complainant’s supervisor upon learning that M1 was considering sending Complainant back to his prior position during Complainant’s probationary period, a decision that was unappealable. Specifically, M1 cited “failure to follow instructions, poor resource management, inability to own his mistakes. [M2] thought that she could help [Complainant] navigate through his probationary year.” D1 described M2 as having “continuous conversations” with Complainant about his performance, and that she, M2 and others, such as a labor relations specialist, discussed Complainant’s performance. On March 22, 2018, M2 notified Complainant that he would not attend the Local Safety Council (“LSC”) meeting and indicated that he would no longer attend at all. M2 confirmed that she removed Complainant from the meeting, explaining it was in response to Complainant telling her that he had too much work in his FLM role. Complainant testifies that he asked D1 about his LSC position, and she ensured that he resumed his role the next month. In all, Complainant missed one meeting. On unspecified dates, Complainant received a PROC, advising him to “to de-combine positions.” M2 testified that she issued positive and negative PROCs to all of her direct reports. M1 testified that when he supervised Complainant, he issued several PROCs on the same issue, yet Complainant “still failed to perform consistently when managing his resources.” Complainant was counseled by M1 and M2 to “consider using all his resources so that the operation would remain safe and efficient,” before combining positions of his direct reports. Complainant argues that “all supervisors have positions combined at times.” Complainant demonstrated additional performance concerns. For instance, M2 explained that she did not assign Complainant TSS duties because he complained of a heavy workload, and because, Complainant was “demonstrating such deficiencies in the very duties he would have been tasked to evaluate.” Prior to the end of Complainant’s probationary period, D1 instructed him not to certify any employee that he’d trained until he checked with her. Soon afterward, in direct opposition to D1’s instructions, Complainant certified an employee who he and another supervisor believed was ready for certification without notifying D1 first. The newly certified employee made two operational errors the same month he was certified. 2020002187 4 However, C1 provided testimony consistent with Complainant’s allegations, stating, “[n]egative performance discussions were harsh across the board with majority of the supervisors,” and that M1 and M2 had a management style that was “not the most uplifting or positive, but very accusatory and demeaning at times.” C1 identified two probationary FLMs aside from Complainant who she alleges had experienced similar interactions with M1 and M2. One of the FLMs also had to wait until after his probationary period was already over to receive feedback from M2. M1 testified that Complainant received coaching from M2 and other Management Officials because of his performance, but it was not criticism. D1 and M2 discussed Complainant’s insubordinance and ongoing performance deficiencies and decided to issue an ODP. A disciplinary action prior to the completion of a probationary period could have result in removal from the position. The ODP was issued on October 25, 2018. In September 2018, Complainant’s probationary period concluded, but M2 did not notify him of whether he passed his probationary period. M2 testified that Complainant would not have passed, but because he was placed on an ODP, he had additional time to demonstrate the skills necessary to remain in his position as an FLM. Complainant ultimately achieved his performance standards in January 2019. At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of his right to request a FAD or a hearing before an EEOC 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 FAD in accordance with to 29 C.F.R. § 1614.110(b). The FAD procedurally dismissed Claims (A) and (B) as untimely, pursuant to 29 C.F.R. § 1614.107(a)(2), and, for the remaining claims, concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant 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, (“EEO MD-110”) 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”).. Timeliness 2020002187 5 The regulation set forth under 29 C.F.R. §1614.107(a)(2) provides that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012). To be considered timely to be included in a disparate treatment analysis, the alleged discriminatory acts had to occur no earlier than July 14, 2018, which is 45 days prior to Complainant’s initial EEO contact August 28, 2018. Claims (A) and (B) were properly dismissed for untimely EEO contact. For Claim (A), even if Complainant did not reasonably suspect that he was assigned a “difficult employee,” on the date of the assignment, the employee was reassigned in February 2018, well over 45 days prior to Complainant’s initial contact. Claims (H) and (I) also allege discrete acts. The Commission has held that harassment allegations that include discrete acts that would independently state claims outside of a harassment framework, assuming that they are timely, are properly reviewed in the context of disparate treatment. Conlin v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120055310 (Dec. 5, 2006). However, only Claim (I) provided sufficient information for a finding of timeliness. Claim (H) will still be considered in the harassment analysis. Disparate Treatment A claim of disparate treatment based on indirect evidence 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 or she must first establish a prima facie case 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 2020002187 6 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 Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Commission has long held that where a complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. See Complainant v. Dep't of the Treas., EEOC Appeal No. 0120132983 (Jun. 10, 2015) other citations omitted. When establishing discriminatory intent, non-probationary employees are not “similarly situated” comparators for a probationary complainant. See Reardon v. United States Postal Serv., EEOC Appeal No. 0120071576 (June 4, 2009); see also EEOC Compliance Manual, Section 604, Theories of Discrimination (Jun. 1, 2006) (individuals will qualify as comparators only where they reasonably can be expected to receive the same treatment in the context of the employment- action at issue). The Agency’s legitimate nondiscriminatory reason for issuing the October 25, 2018 ODP was Complainant’s unsatisfactory work performance, which is supported in the record, and which Complainant does not appear to dispute. Alternately, M1 testified that the ODP was also intended to address Complainant’s insubordinance when he ignored D1’s instructions about certifying developmental employees and her subsequent request that he meet with her. The ODP would provide Complainant with an opportunity to improve, whereas taking disciplinary action during Complainant’s probationary period could result in immediate removal from his position. Moreover, the Agency acted within its discretion, as the ODP was in response to Complainant’s actions as a probationary employee. Harassment/Hostile Work Environment 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 his position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his race, national origin, and/or prior EEO activity. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). 2020002187 7 Even when considering them together, Complainant’s remaining allegations involve routine work assignments, instructions, and admonishments, which are all “common workplace occurrences” that do not rise to the level of harassment. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) citations omitted. Likewise, it is well established that instances of a supervisor questioning an employee with respect to their duties, even if done in a confrontational manner, is a “common workplace occurrence.” See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). Absent clear evidence of discrimination, the EEO complaint process should not be used to challenge routine instructions directing employees to perform work within their crafts and job descriptions or to express a preference for a different policy or practice than the one implemented by management. Dewitt L. v. Dep’t of the Navy, EEOC Appeal No. 0120160682 (May 3, 2016). While an employee may prefer to perform certain duties, among others within their work assignment, or may have a different idea about how operations should be run, these are not issues which should be pursued in the EEO complaint process since decision makers in the complaint process cannot substitute their judgment on how to run the day to day operations of an Agency for that of the managers involved. Id. Furthermore, we find that Complainant has failed to prove, by a preponderance of the evidence that the employment actions were somehow abusive or reasonably offensive, and were taken in order to harass him on the basis of any of his protected classes. See Wolf v. United States Postal Serv., EEOC Appeal No. 01961559 (Jul. 23, 1998); See also, Long v. Veterans Admin., EEOC Appeal No. 01950169 (Aug. 14, 1997). Having thoroughly reviewed the record and the Parties’ contentions on appeal, including those not specifically addressed herein, Complainant has not established discrimination 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 finding that Complainant was unable to establish discrimination as alleged. 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. 2020002187 8 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. 2020002187 9 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 July 28, 2021 Date