[Redacted], Darrin H., 1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Jan 8, 2021

Appeal No. 2020005080 (E.E.O.C. Jan. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darrin H.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020005080 Agency No. DOT-2019-28424-FAA-03 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s August 12, 2020 final decision finding no discrimination concerning his 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Airway Transportation System Specialist (ATSS), FV-2101-I Band, at the Agency’s Atlanta Terminal Radar Approach Control Facility (TRACON) Service Operations Center (SOC) in Peachtree City, Georgia. On August 21, 2019, Complainant filed his complaint alleging discrimination based on race (African American), age (over 40), and in reprisal for prior EEO activity 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. 2020005080 2 1. On or about May 29, 2019, management failed to respond appropriately to a coworker’s refusal to communicate with him regarding work matters and insistence on speaking with a Caucasian employee by removing him from a temporary promotion to the NOM (National Airspace Systems Operations Manager) position. 2. On July 22, 2019, he learned he was not selected for the position NOM, ATSS-FV-2101- J, advertised under vacancy announcement ASO-ATO-19-B101-61153. After completion of the investigation of the complaint, Complainant did not request a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. On appeal, Complainant contests the Agency’s finding of no discrimination as alleged. 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), Chap. 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"). 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 he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. 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 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 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 2020005080 3 evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim 1, Complainant’s supervisor (S1) indicated that he promoted Complainant into the temporary detail assignments as the NOM on April 14, 2019, while the Agency was undergoing the hiring process to fill the vacancy. The detail assignment was scheduled to last from April 14 through July 12, 2019. S1 explained that management was allowed to terminate a detail assignment with or without cause. S1 stated that after Complainant’s detail, an individual from the SOC informed him of Complainant’s conduct toward an Air Traffic Control Operational Supervisor (ATOS1), who was the SOC’s customer and was not in Complainant’s chain of command. S1 approached ATOS1 about the incident. In his May 3, 2019 email to S1, ATOS1 indicated that on April 26, 2019, while he was talking with another employee (E1) concerning a log entry error, Complainant raised his voice talking over E1. When ATOS1 told Complainant that ATOS1 was not talking to him, Complainant said “he is not in charge I am,” kept raising his voice, and was rambling that he had to work with “this idiot all night.” ATOS1 stated that E1 provided him with all the information he needed. ATOS1 noted that his office had some issues working with Complainant in that Complainant distracted their controllers during his night shift. Complainant would walk around the TRACON all night, clapping randomly. He would also turn on a lamp in the tech operations area which would light up the whole wall where the controllers were working. S1 then initiated an investigation of the incident based on Agency policy. In his May 13, 2019 statement, Complainant stated that on April 26, 2019, ATOS1 came to the SOC desk and asked E1 about the log entry error. Complainant tried to interject into the discussion to explain the same error which occurred the night before. ATOS1 however refused to talk to Complainant instead talked to E1. Complainant acknowledged that he told ATOS1 that E1 was not in charge. Complainant also acknowledged that he told E1 that ATOS1 “does not want to talk to me and he is acting like an idiot.” S1 stated that after consulting with Labor Relations regarding the foregoing incident, he decided to terminate Complainant from his temporary detail to the NOM position on May 19, 2019, due to his unprofessional conduct. Regarding claim 2, Complainant indicated that he applied for the NOM, ATSS-FV-2101-J position on April 11, 2019, via USAJOBs. S1 was the selecting official for the position. S1 convened a panel of bid package evaluators comprised of two officials and an interview panel comprised of three officials. S1 indicated that the vacancy announcement required a supervisor endorsement which S1 provided to Complainant. There were nine applicants, including Complainant. 2020005080 4 Each applicant’s bid package was sent to the bid evaluation team to be scored based on applicants’ work experience, certification credentials, software interface experience, education, awards, and demonstrated abilities related to the position at issue. The top five candidates who scored 104, 82, 79, 78, and 75 were referred for interview. Complainant received the evaluation score of 75 and was referred for interview. The evaluation panel gave 32 points for the Selectee’s awards (which included 14 cash awards from 1999 to 2018) and 2 points for Complainant’s awards (no cash award). The panel gave two points for each cash award and one point for each time off award. S1 indicated that on June 21, 2019, he selected the Selectee (White, over 40, younger than Complainant, unknown prior EEO activity, a union representative, a National Airspace Systems Specialist, FV-2101-I), because he received the highest accumulated score of 172 (104 for his bid package evaluation and 68 for his interview). Complainant was not selected because he received the accumulated score of 123 (75 for his bid package evaluation and 48 for his interview). The interview panel noted that candidates were asked the same seven questions related to the position at issue and Complainant did not completely answer questions 3 and 4. Three other candidates received the interview scores of 59, 58, and 53. The Selectee’s application indicated that the Selectee was promoted/detailed to the SOC Manager position in January 2018. He was also promoted/detailed to the NOM position in October 2017, with superior performance without incident. S1 was the Selectee’s supervisor at the time of the selection process and he “fully” endorsed the Selectee for the position at issue. Upon review, we find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reason for not selecting Complainant for the position. Furthermore, Complainant failed to show that his qualifications for the position were plainly superior to the Selectee’s qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). After a review of the record, we, assuming arguendo that Complainant had established a prima facie case of discrimination, find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under circumstances. Based on the foregoing, we find that Complainant did not establish discriminatory animus or retaliatory intent. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 2020005080 5 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. 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). 2020005080 6 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. 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 January 8, 2021 Date