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

Equal Employment Opportunity Commission

Feb 15, 2022

Appeal No. 2021000562 (E.E.O.C. Feb. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darrell K.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2021000562 Hearing No. 410-2020-00085X Agency No. 2019-28203-FAA-03 DECISION On October 16, 2020, Complainant filed an appeal pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 1, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. At the time of events giving rise to this complaint, Complainant worked as an Airway Transportation System Specialist, FV-2101-H, at the Agency’s Hartsfield NAV/COMM Service Support Center in Atlanta, Georgia. Complainant submitted an Employee Reassignment Request (ERR) from the Agency’s Atlanta facility to the Agency’s facility in Orlando, Florida on September 28, 2018. Complainant stated that his first-level supervisor (S1) contacted him and informed Complainant that he had spoken with the front-line manager in Orlando who had asked if they could pick up Complainant with a possible start date of January 20, 2019, if a transfer was approved. 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. 2021000562 2 Complainant was informed by S1 in November 2018, that he could not be released to Orlando at that time due to staffing issues because the Agency could not backfill Complainant’s position when he was initially considered for an ERR transfer to Orlando. Complainant believed that he was selected and that his reassignment was later canceled. Complainant’s third-level supervisor (S3) explained that a facility would pull the ERR list to review transfer requests for that particular unit or specialty. The supervisor then reviewed the list and determined if an individual is suitable for the position. The supervisor in the receiving facility then contacted the individual’s supervisor to determine if the individual can be released for a transfer to the receiving facility. When the supervisor in Orlando contacted S1 about releasing Complainant, an assessment was made by the Atlanta facility to determine if Complainant could be released to Orlando. S3 stated she never approved Complainant’s transfer request because she, Complainant’s second-level supervisor (S2), and S1 determined that due to staffing concerns in Atlanta, they could not release Complainant at that time. Management officials believed, however, they could release him within six months. S3 and S2 stated they had been working on releasing Complainant to Orlando through the ERR at a future date, when they learned that Complainant had applied for and had accepted an FV- 2101-G position under Vacancy Announcement No. FAA-AHF-19-ATSS-59770 in Orlando. The position was a lower graded position, and had an effective date of April 28, 2019. S3 stated that at that time, Complainant was not working and was on leave as he was recovering from a car accident and had requested a reasonable accommodation. S3 affirmed that she gave Complainant a release date and ultimately fulfilled his ERR request. On March 12, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when, on November 14, 2018, he learned that his Employee Request Reassignment was canceled due to his supervisor’s interference. 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). Complainant timely requested a hearing. The AJ assigned to the case sua sponte issued a summary judgment decision in favor of the Agency. In the decision, AJ determined that Complainant failed to demonstrate that the Agency’s articulated legitimate, nondiscriminatory reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant 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). 2021000562 3 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). In order to successfully oppose a decision by summary judgment, a 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Complainant failed to demonstrate that the Agency officials in this matter harbored discriminatory animus or that the legitimate, non-discriminatory reasons provided by the officials were pretext for unlawful discrimination. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 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. 2021000562 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. 2021000562 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 February 15, 2022 Date