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

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020001267 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 James M.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020001267 Hearing Nos.: 410-2017-00094X, 410-2019-00021X, 410-2019-00023X, 410-2019-00024X Agency Nos.: DOT-2016-26666-FAA-03, DOT-2013-25011-FAA-03, DOT-2012-24586-FAA-03, DOT-2012-24344-FAA-03 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 23, 2019, final order concerning four equal employment opportunity (EEO) complaints 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Air Traffic Control Specialist/2101-I at the Agency’s Air Route Traffic Control Center in Hampton, Georgia. 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. 2020001267 2 Complainant filed four EEO complaints. In Agency No. DOT-2012-24344-FAA-03, Complainant alleged that the Agency discriminated against him on the basis of his race (African- American) when: 1. On or about July 24, 2009, Complainant was denied leave to care for his wife and support her when her mother was hospitalized; 2. On August 6, 2009, a coworker took pictures of Complainant’s incomplete worksite, stored the pictures on a facility computer and showed the pictures to fellow employees and managers in an attempt to discredit Complainant’s work; this led to management questioning Complainant’s work; 3. On August 27, 2009, Complainant was reprimanded for alleged substandard performance; 4. Complainant never received compensation for training staff on Remote Monitoring Logging System Software (RMLS) in August and September 2009; 5. On or about September 8, 2009, Complainant was removed from his primary position and replaced with a coworker who had no experience as the Maintenance Processing System (MPS) Administrator; 6. Complainant’s supervisors distributed emails nationwide concerning the removal of his MPS Administrator duties, and demonstrated animosity towards him; 7. During August and September 2009, Complainant’s supervisor spread false statements about him; and 8. In approximately September 2009, Complainant was denied a monetary award for working as the Communication Unit’s team lead for the mold removal program. In Agency No. DOT-2012-24586-FAA-03, Complainant alleged that the Agency subjected him to discrimination in reprisal for prior protected EEO activity when: 9. Complainant was scheduled excessive work, in addition to his regular duties, such as simultaneous assignments as MPS Administrator and COMM watch stander; 10. Complainant’s supervisor allowed his Voice Switching Communication System (VSCS) certification to expire by not providing him with the required training; 11. Complainant was not scheduled overtime; and 12. On April 23, 2012, Complainant was withdrawn from Increasing National Airspace (NAS) Knowledge (INK) training. In Agency No. DOT-2013-25011-FAA-03, Complainant alleged the Agency discriminated against him on the bases of race and in reprisal for prior protected EEO activity when: 13. On January 16, 2013, Complainant was not selected for the position of NAS Area Specialist advertised under Vacancy Announcement No. ASO-ATO-13-B652- 12345; 14. In February 2013, Complainant’s assignment to train other employees was sabotaged by management in that management provided no support, did not direct 2020001267 3 employees to attend the training, nor allocate the required time necessary to perform the training; and 15. Management did not allow Complainant to participate in a RMLS workgroup. In Agency No. DOT-2016-26666-FAA-03, Complainant alleged that the Agency discriminated against and subjected him to a hostile work environment on the bases of age (48), sex (male), race, and in reprisal for prior protected EEO activity when: 16. On September 22, 2015, Complainant was belittled, humiliated, bullied, and called a “freaking liar” during a forced mediation; 17. Management did not support, assign, or monitor Complainant’s on the job training (OJT) progress in the same manner as others; 18. Management failed to provide instructions, guidance, and counseling to Complainant’s OJT instructor; 19. Management conducted a pre-investigation to entrap Complainant by asking investigative questions prior to the actual investigation; 20. Management deliberately used false and incomplete evidence as justification to rate Complainant as not completing tasks and not performing his job well; 21. Because Complainant did not complete a task in a specified time frame, on November 10, 2015, Complainant was issued a 14-day proposed suspension, whereas others have gone much longer without completing OJT and were not suspended or punished; 22. On January 7, 2016, Complainant received a negative performance evaluation and was told by management that he would not have to put up with what was happening to him if he would retire; and 23. Effective March 13, 2016, Complainant was suspended for 14 days. After its investigation into the complaints, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request hearings before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested hearings. The matters were subsequently consolidated. The Agency submitted a motion for summary judgment. The AJ subsequently issued a decision by summary judgment in favor of the Agency finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued its final order 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). A fact is “material” if it has the potential to affect the outcome of the case. 2020001267 4 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 or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. 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 or retaliated 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. 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). 2020001267 5 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. The court has the sole discretion to grant or deny these types of requests. 2020001267 6 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 June 7, 2021 Date