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

Equal Employment Opportunity Commission

Dec 16, 2021

Appeal No. 2020004354 (E.E.O.C. Dec. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Byron P.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020004354 Hearing No. 560-2018-00133X Agency No. 2017-26956-FAA-05 DECISION On July 28, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 15, 2020 final order 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. Complainant was an Air Traffic Control Specialist Trainee, FG-2152-01, assigned to the Federal Aviation Administration Academy at the Mike Monroney Aeronautical Center in Oklahoma City, Oklahoma. Complainant’s employment was a temporary executive appointment and was subject to his successful completion of the Air Traffic training program at the Agency’s Academy. The training program consisted of lectures, practical training exercises, tests, and four performance assessments (PA). PA scores were the most heavily weighted and determined if a student passed. A minimum overall score of 70 percent was required to pass the course. Complainant initially passed his first two PAs. Complainant received a score of 15 percent on the third PA, which was so low that Complainant was mathematically eliminated from receiving the course’s minimum required 70 percent passing rate. As a result, Agency management terminated Complainant’s employment. 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. 2020004354 2 On November 4, 2016, Complainant filed a formal EEO complaint in which he alleged that the Agency discriminated against him on the basis of sex (male) when, throughout his training, he was subjected to less favorable evaluation standards than similarly situated female employees culminating in the termination of his temporary appointment to the position of Air Traffic Control Specialist, effective May 25, 2016. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ assigned to the case granted the Agency’s motion for summary judgment and issued a decision finding that Complainant was not subjected to discrimination as alleged. The Agency then issued its final order fully adopting the AJ’s decision. This appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To warrant a hearing on his disparate treatment claim, Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with in this case, however, since Complainant’s training instructors articulated a legitimate and nondiscriminatory reason for terminating him. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). The record reveals that trainees were required to pass four PAs. One of Complainant’s second-level supervisory instructors (S2) averred that although he passed the first and second of four PAs, his score of 15 percent on the third performance assessment was so low that he would not be able to pass the program even with a score of 100 percent on the fourth assessment. IR 373-74. In order to successfully oppose a decision by summary judgment, Complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. 2020004354 3 Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding the reason given for terminating Complainant was a pretext designed to conceal a discriminatory motivation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Questions of pretext can be raised by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare- Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008). Complainant identified two female Air Traffic Control Trainees as comparators (C1 and C2) who he alleged were treated more favorably than him. C1, who was in his training class, had passed all of her PAs. C2, who was in the class immediately preceding Complainant’s, had also failed one of her PAs but was subsequently reinstated to the Academy pursuant to the terms of a settlement agreement between C2 and the Agency dated July 11, 2016. Apart from his own speculative and conclusory assertions, Complainant has presented neither affidavits, declarations or unsworn statements nor documents which contradict or undercut the explanations provided by Complainant’s training instructors or which otherwise establish the existence of a dispute sufficient to raise a genuine issue of material fact. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2020004354 4 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. 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. 2020004354 5 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 December 16, 2021 Date