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

Equal Employment Opportunity Commission

Aug 24, 2021

Appeal No. 2020003141 (E.E.O.C. Aug. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felton S.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020003141 Agency No. 2020-28590-FAA-03 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated February 12, 2020, dismissing a formal complaint of unlawful 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 During the period at issue, Complainant worked as an Air Traffic System Specialist at the Air Route Traffic Control Center, Technical Operations Unit, in Hampton, Georgia. On April 11, 2019, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On November 25, 2019, Complainant filed a formal EEO complaint alleging the Agency subjected him to discrimination based on race (Black) and in reprisal for engaging in prior protected EEO activity when: A. In an email dated on or about August 18, 2010, from the Manager, Atlantic Operations 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. 2020003141 2 Control Center (AOCC), FAA, he was told that no career opportunities would be offered to him after another white employee working in the same unit was earlier granted the opportunity to advance in the AOCC. B. On or about January 9, 2012, his supervisor assigned a project to him after a white employee refused to perform the task and he was told “just get it done.” In its February 12, 2020 final decision, the Agency dismissed claim A on the grounds that it: (1) had not first been raised with an EEO Counselor, and (2) it stated the same claim that was raised in a prior EEO complaint. Specifically, the Agency found that claim A raised the same matters already addressed in Agency Case No. 2010-23306-FAA-03, which was the subject of the Agency’s final decision dated August 22, 2011, and which on appeal, was affirmed by this Commission in EEOC Appeal No. 0120120041 (June 14, 2013); request to reconsider denied, EEOC Request No. 0520130605 (January 16, 2014). The Agency also dismissed claim B on the grounds that it: (1) had not first been raised with an EEO Counselor, and (2) stated the same claim that was raised in a prior EEO complaint. The Agency noted that claim B raised the same matters in Agency Case No. 2011-24166-FAA-02, which had been subject of a hearing before an EEOC Administrative Judge (AJ) held in late 2013 and early 2014. The AJ subsequently issued a decision concluding no discrimination was established. Complainant filed an appeal, and the matter was remanded for a supplemental hearing, which was held in March 2020. The AJ again concluded no discrimination was proven. The instant appeal followed from the Agency’s November 25, 2019 dismissal of the current EEO complaint. In response, the Agency argues that claim A contains the same matters previously included in Agency No. 2010-23306-FAA-03, and in addition, Complainant did not initiate EEO counseling for this complaint until April 11, 2019, nearly eight years later. The Agency also noted that claim B contains the same matters previously included in Agency No. 2011-24166- FAA-02, and in addition, Complainant did not initiate EEO counseling until April 11, 2019, nearly seven years after the alleged discriminatory events. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a formal complaint that states the same claims that is pending before or has been decided by the Commission or the Agency. To be dismissed as the “same claim,” the present formal complaint and prior complaints must have involved identical matters. It has long been established that “identical” does not mean “similar.” The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Department of the Air Force, EEOC Appeal No. 01955890 (April 5, 1996), rev’d on other grounds, EEOC Request No. 05960524 (April 24, 1997). 2020003141 3 The Agency dismissed the two claims, determining that they raised the same matter that was raised in prior formal complaints (Agency Case Nos. 201023306-FAA-03 and 2011-24166- FAA-02). We agree. Claim A In Agency No. 201023306-FAA-03, the claim centers on the following email dated August 19, 2010, from the AOCC Manager to Complainant: As we discussed in your visit with me, I do not have RMM [Remote Maintenance Monitoring] or RMIS SOSs. I have SDSs who have responsibility for RMM and RMIS as portion of their job. Their main duties are providing service to the AOCC [Atlantic Operations Control Center] floor specialists and Districts. The skills they use to perform those functions were gained as OCC floor specialist. I am willing to allow you to shadow an SDC for an afternoon so you can see what they do, but I do not feel that you currently have the qualifications for a detail into an SOS position. You will recall that in our discussion I shared with you that it would be difficult to be competitive for an SDS position without floor specialist experience. I also shared with you that it would be difficult be competitive for a floor specialist position with your limited equipment experience. You are in a facility that has comm, automation, environmental, and other equipment. Take advantage of that. Here, claim A contains in essence the same matters included in Agency No. 2010-23306-FAA- 03, albeit not articulated in precisely the same manner. On August 22, 2011, the Agency issued a final decision concluding no discrimination was established, which was affirmed by the Commission as delineated above. Therefore, we find that the Agency properly dismissed claim A for stating the same claim previously raised. Further, Complainant was aware of this claim in August 2010, but did not initiate EEO counseling in this current complaint until April 11, 2019, nearly eight years later. Pursuant to 29 C.F.R. § 1614.107(a)(2), this claim is also properly dismissed as untimely raised. Claim B With respect to claim B, Complainant claimed the Agency erred when it stated in its dismissal decision that claim B had already been previously adjudicated in Agency No. 20110-24166- FAA-02, which including the following claim: Were you discriminated against on the basis of your race (Black) and/or in reprisal for your prior participation in protected activity when, since October 2010 and continuing, you have been assigned excessive and additional work by your supervisor? In his affidavit dated April 9, 2012, submitted during the investigation in Agency No. 20110- 24166-FAA-02, Complainant stated the following: 2020003141 4 [Mr. B] as assigned me tasks so that he could set me up for failure. In January 2012, [Mr. B] assigned me a task after he and [Mr. B2] learned that in performing the task that there was the risk of losing power to the equipment. [Mr. B2] refused to perform the task after he had worked on it for almost a month. The task was then assigned to me, and when talked for guidance [Mr. B] shouted, “just get it done.” Based on Complainant’s own affidavit explaining his claim in his previous EEO complaint, we conclude that, among other things, Complainant is now simply restating his earlier claim that his then-supervisor [Mr. B] was assigning him his work in such a manner that discriminated against him because of his race and prior protected activity, including the specific January 2012 incident now raised again in the current complaint. In that earlier complaint, the assigned AJ has already issued his decision in this case finding no discrimination, which was implemented by the Agency in a final order.2 For this reason, we again find that the Agency properly dismissed claim B for stating the same claim as an earlier EEO complaint. CONCLUSION In sum, the Agency properly dismissed both claims in the current complaint on the grounds that the matters raised therein are the same matters that were raised in prior formal complaints (Agency Case No. 201023306-FAA-03 and Agency Case No. 2011-24166-FAA-02). The Agency’s final decision to dismiss the entire complaint for the reasons discussed above is AFFIRMED. 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. 2 Complainant filed an appeal from this decision, which is pending before the Commission, docketed as Appeal No. 2020003742. 2020003141 5 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. 2020003141 6 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 August 24, 2021 Date