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

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003865 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlene Q.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020003865 Agency No. 2017-27566-FAA-02 DECISION On June 12, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 18, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Equal Pay Act of 1963 (EPA), as amended, 29 U.S. C. 206(d) et seq. BACKGROUND As of July 2016, Complainant worked as an Air Traffic Control Specialist with the Air Traffic Services Technical Advisory Group in Washington D.C. Before July 2016, Complainant was employed as an Air Traffic Manager (“ATM”) at the Agency’s Radar Air Traffic Control Tower (RATCF) in Meridian, Mississippi. On January 19, 2018, Complainant filed a formal complaint alleging: (1) The Agency subjected her to harassment/a hostile work environment based on race (African American) and sex (female) 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. 2020003865 2 A. Her District Manager subjected her to verbal threats and intimidating behavior beginning in November 2013. B. In December 2013, her District Manager requested a Quality Assurance investigation of the facility for which she was the Air Traffic Manager (ATM) but did not request an investigation of the other facilities in the district. C. In February 2014, she was displaced from her position by a Caucasian male employee and asked not to return to her facility. D. She requested to perform duties at the district office but was told that none were available. E. In July 2015, her two-year detail assignment ended prematurely, and she was instructed to return to her previous facility despite her objections. Upon her return to the prior facility, her District Manager delegated work to the outgoing ATM. F. In September 2015, her District Manager declined to give her an endorsement for a detail but endorsed a Caucasian male ATM in the district. G. She was denied training opportunities in October 2015 after the District Manager revoked her enrollment, so that new ATMs could participate in the training opportunities. H. After she was selected as Operations Manager for Dulles Air Traffic Control Tower, her duties were rescinded and she was involuntarily retained in Mississippi from January 2016 through July 2016, when the District Manager delayed her release date until October 2016. During this period, at least two Caucasian males in the district were selected and transferred almost immediately. I. On July 25, 2016, her facility was transferred to the U.S. Navy and all Federal Aviation Administration (FAA) personnel were supposed to be reassigned with: (1) choice of duty station; (2) $10,000.00 incentive pay; and (3) $27,000 in permanent change of station funds. She did not receive a choice of duty station, but instead was reassigned to Dulles. However, five Caucasian males received all three reassignment incentives. 2020003865 3 (2) On or about September 18, 2017, she received a Standard Form (SF) 50 showing a basic salary nearly equivalent to what it should have been upon arriving at Dulles in July 2016. Further review of her prior SF-50 (effective date July 24, 2016) revealed an Air Traffic transfer rather than a Merit Promotion Program promotional assignment and did not reflect the $3,000 pay increase that she should have received at the time of her July 2016 reassignment.2 Following 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 her request on March 30, 2020. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). On May 18, 2020, the Agency issued a final decision finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Sufficiency of the Investigation As an initial matter, we note that on appeal Complainant argues that the investigation into her complaint was deficient in certain respects. The record shows that on March 8, 2019, Complainant requested a hearing before an EEOC Administrative Judge and was provided an opportunity for further investigation into her claims through the discovery process. The Agency provided responses to Complainant’s requests for discovery on March 19, 2020. However, Complainant withdrew her request for a hearing on March 30, 2020, before the close of discovery in this case. With her withdrawal, the case returned to the Agency for a FAD and Complainant forfeited her opportunity for further investigation that might have resolved the alleged deficiencies to the record. See Cristobal v. United States Postal Service, EEOC Appeal No. 0120180756 at 3 (June 19, 2019) (finding that “by choosing not to request a hearing before an AJ, a complainant waives the opportunity to develop the record through discovery and to cross examine witnesses”). We have reviewed the record in this case and find the investigation was adequate and permits a reasoned adjudication of Complainant’s claims. 2 The record reflects that on March 26, 2018, the Agency issued a final decision dismissing the instant formal complaint for untimely EEO Counselor contact. On appeal, the Commission reversed the Agency’s dismissal and remanded the matter to the Agency for further processing. Complainant v. Dep’t of Transportation, EEOC Appeal No. 0120181745 (September 13, 2018). Following the Commission’s decision, the Agency processed the remanded claims in accordance with 29 C.F.R. § 1614.108, which is now the subject of the instant appeal. 2020003865 4 Claim 1: Discriminatory Hostile Work Environment To prove her claim of ongoing discriminatory harassment/hostile work environment, Complainant must establish that she 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 a protected basis - in this case, her race or sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). During the period in question, affidavits from human resources specialists, Complainant’s subordinates, and Complainant’s then-second level supervisor show that Meridian, Mississippi facility was undergoing a switch from the Agency’s (Federal Aviation Administration) control to Navy control, which resulted in personnel changes and instability at the Control Tower where Complainant worked In allegation (A), Complainant alleges that her first-level supervisor3 had multiple verbal outbursts with her over the phone. In allegation (B), Complainant further alleges that she learned that her supervisor requested a Quality Assurance review of the facility where Complainant was the Air Traffic Manager. She believed the quality review was designed to intimidate her. There is, however, no evidence of any adverse action resulting from the quality review, if it even occurred. The Director of Operations was Complainant’s second-line supervisor (“S2”) (African American, male) from January 2015 until the operations were transferred to the Navy in the summer of 2016. S2 asserted that Complainant never complained to him about being harassed by her supervisor. The Front-Line Manager stated that while he worked at the Meridian facility, Complainant was his first-line supervisor. He noted that during the relevant period, Complainant never complained to him about being harassed and he never witnessed Complainant being harassed by her supervisors. The Front-Line Manager acknowledged when he first arrived at the Meridian facility, it was unpleasant because there was tension between the FAA employees and Navy personnel who also worked at the facility. The weight of the evidence indicates that it is more likely than not that the short temper Complainant alleged she experienced from her supervisor during this period, as well as the need for a quality review, was the result of the tensions surrounding the changeover of the facility to the Navy rather than discriminatory animus. Allegations (C), (D), (E), (F) and (G) all concern Complainant’s request to be away from the facility (or in the case of allegation G, to step away from her role as Air Traffic Manager at Meridian to attend training) at a crucial time in the changeover of control of the Tower to the Navy. 3 This supervisor was no longer working at the Agency at the time of the investigation and did not participate in the investigation. 2020003865 5 Allegation C alleges that Complainant was replaced by Caucasian male in her role. However, the evidence shows that this happened because Complainant was assigned to a detail as requested. Complainant later requested that this detail be extended after management recalled her to Meridian to resume serving as the Air Traffic Manager. The Agency asserted that management recalled her due to the ongoing switchover to Navy control which required her presence as the Air Traffic Manager. The evidence also shows that management asked Complainant to search for a new position as an opportunity for Complainant to actively participate in obtaining a new position once the changeover to the Navy occurred. Allegation (H) also pertains to Complainant’s role in the Navy changeover. The evidence shows Agency policy required Air Traffic Managers to remain at their assigned facility until a changeover is complete. Regarding allegation (I), Complainant claimed that she did not receive a choice of duty station, but instead received a reassignment to the Dulles ATCT. However, the Team Manager (African American) stated that the FAA entered into a Memorandum of Understanding (MOU) with its union in concerning the closing of the facility. The Team Manager stated that, in part, the MOU granted the bargaining unit members the opportunity to transfer to a facility of their choice with a $27,000 Permanent Change of Station (PCS) and a $10,000 incentive bonus. Complainant had expressed a desire to relocate to the Washington D.C. area. While waiting for the facility to be transferred to the US Navy, Complainant voluntarily applied for an Operations Manager position at the Dulles ATCT and was selected. The Team Manager stated, however, the announcement did not list any relocation expenses. Human Resources advised Agency management that “we could not honor that commitment through the announcement. They suggested that we administratively reassign the Complainant to the position which would allow us to honor our commitment and place her in a location of her choice.” He asserted that the record indicated that after Complainant was administratively reassigned she received the $27,000 relocation expenses and the $10,000 reassignment incentive. After careful consideration of the evidence of record, we conclude that Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race or sex, rather than the tensions and confusion associated with the changeover of control of the Meridian facility. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected race or sex. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Claim 2: Equal Pay Act - Sex Discrimination The United States Supreme Court articulated the requirements for establishing a prima face case of discrimination under the EPA in Coming Glass Works v. Brennan, 417 U.S. 188 (1974). To establish a prima facie case of violation of the EPA, a complainant must show that she or he received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration denied, EEOC Request No. 05A10076 (August 12, 2003). Complainant has met this initial burden. 2020003865 6 However, once a complainant has met this burden, an employer may avoid liability by showing that the difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production of work (also referred to as an incentive or piecework system); or (4) a differential based on any factor other than sex. Id. Upon review, we find that the difference in pay here was justified by a factor other than sex. Complainant claimed that she was denied placement into the Supervisory Air Traffic Control Specialist/Operations Manager position at Dulles effective July 24, 2016, via a promotion opportunity and instead placed into the position via administrative reassignment. She claimed this action resulted in lost compensation. The Lead Human Resources Specialist (Lead HR Specialist) stated that the job transfer Complainant referenced in Claim 2 was completed voluntarily by Complainant. The Lead HR Specialist further explained that Complainant’s entitlement to the relocation incentives referenced in Claim 1, allegation (I) required a Directed Reassignment by the Agency due to the changeover at the Meridian facility. The Lead HR Specialist stated that Complainant originally was selected for a competitive opportunity in the Washington area, which would have provided her the compensation she asserts she lost. However, she later changed her mind and requested the Direct Reassignment instead in order to receive the relocation incentives. Thereafter, Human Resources processed the Direct Reassignment and provided Complainant with the relocation incentives ($27,000 relocation expenses and the $10,000 reassignment incentive). Complainant failed to demonstrate that the Caucasian males at her facility who were given Direct Reassignments and relocation incentives were paid proportionally more than her. The record shows that about a year after her reassignment to Dulles the Agency also increased Complainant’s pay in her new role. Complainant’s pay differential was then higher than Caucasian males in her facility because of her job title, not sex. As such, we conclude that Complainant has failed to establish a violation of the Equal Pay Act or salary discrimination based on sex in violation of Title VII. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record 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 2020003865 7 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 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. 2020003865 8 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 November 4, 2021 Date