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

Equal Employment Opportunity Commission

Jun 21, 2021

Appeal No. 2020003178 (E.E.O.C. Jun. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karen W.,1 Complainant, v. Pete Buttigieg, Secretary, U.S. Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020003178 Agency No. 2018-28128-FAA-04 DECISION On April 20, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 10, 2020, final decision concerning her 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Controller Specialist, AT-2152-LH, at the Agency’s Chicago Terminal Radar Approach Control (TRACON) (C90) facility in Elgin, Illinois. On January 8, 2019 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment based on sex (female), race (Alaskan Native/American Indian), color (Tan), religion (Christian), and in reprisal for prior protected 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. 2020003178 2 1. On June 22, 2018, management met with Complainant regarding the Agency’s social media policy and presented her with screenshots of her as a passenger on her husband's private aircraft; 2. On July 16, 2018 and August 20, 2018, management interrogated Complainant about her off-duty activities and sick leave and she learned that management tracked her through a website called FlightAware; 3. On September 21, 2018, management issued a proposal to suspend Complainant for 14 days for lack of candor, which was effectuated on October 19, 2018; 4. On October 4, 2018, management denied Complainant’s request for administrative leave; 5. On October 18, 2018, Complainant was required to work during her lunch break and ordered to relieve another controller for his lunch break 6. On October 19, 2018, management held Complainant “on position” for over three hours and threatened to strip her of her Controller-in-Charge (CIC) duties immediately and indefinitely; 7. On October 22, 2018, Complainant’s CIC duties and responsibilities were revoked and management denied her request to change the dates of her suspension; 8. On November 13, 2018, management denied her requested shift change; 9. On April 8, 2019, Complainant learned she was the subject of a management investigation; 10. On April 8, 2019, her request for a different Weingarten interviewer was denied and she was subjected to inappropriate questioning for almost an hour; and 11. On July 11, 2019, Complainant was issued a 14-day suspension proposal for alleged “inappropriate conduct.” Claim 1 - Social Media Conduct The Acting General Manager (AGM) affirmed that a pilot on the West coast saw a YouTube video in which Complainant was in the right seat of an aircraft, operating the radio and drinking a Coors Light. She stated that in the video, Complainant also identified herself as an Air Traffic Controller. She said that the pilot notified the flight service office in California and that eventually the “QC Manager in Chicago” was notified. A witness corroborated that Complainant identified herself as an Air Traffic Controller and was sitting in the co-pilot seat. Management officials conducted a meeting with Complainant to re-brief her on the Agency’s Social Media Policy. Complainant claimed that while she was told she had not violated the Social Media Policy she has a Record of Conversation in her file which gave the appearance that she did something wrong. Complainant asserted that she believed that her husband’s ex- wife was the “concerned viewer” who reported the video. Claims 2 and 3 - “Interrogations” and Suspension On or around June 27, 2018, Complainant claimed that she and her then-fiancé (now husband), who also works at Chicago TRACON, flew their private plane to Nashville for dinner. 2020003178 3 She stated they had planned to return that night; however, her husband became sick, making that impossible. She claimed that because they had not intended to stay, they had to book a motel for the night. She stated that this entire incident occurred during her off time. Complainant claimed that her private aircraft and radio communications were tracked by AGM during this time. Complainant alleged that as a result of this, she was a part of two Weingarten meetings. She explained that the meetings were hostile and demeaning with inappropriate and irrelevant questions. She said that she was shown footage of their trip from her husband's You Tube channel and asked very specific questions. She says that it had been awhile since the trip and since she could not remember exact times, her union representative told her not to answer anything if she was not 100 percent sure. Complainant claimed that the investigations were for “Sick Leave Abuse” but were broadened to “Sick Leave Usage.” Complainant alleged that management was unable to discredit her statements but suspended her for 14 days for “Lack of Candor.” AGM affirmed that the Agency’s FALCON database was used to investigate information regarding Complainant’s flight. Management conducted a Weingarten meeting to investigate further and management subsequently determined that Complainant and her husband both took sick leave concurrent with days off, which was common abuse of sick leave. Further, Agency management reviewed a video which showed Complainant’s fiancé’s aircraft was used on days that both called in sick. During the Weingarten meeting, Complainant’s answers of “I do not recall” showed a lack of candor. Based on advice from Labor Relations, Complainant was issued a Notice of Proposed Suspension for 14 Days. Claim 4 - Denied Time to Prepare her Response Complainant claimed that she was denied 16 hours of administrative time to prepare her response to the proposed suspension. Complainant’s second-level supervisor (S2) acknowledged that she was not permitted the requested 16 hours of administrative leave but attributed the reason to staffing. S2 stated that Complainant was granted 160 minutes on October 4, 2018 and her entire eight-hour shift on October 1, 2018. Claims 5 - 7 - Forced to Work through Lunch/CIC Duties Stripped/Suspension Complainant alleged that on October 18, 2018, she was skipped for lunch to let several other Controllers go and was held on position for almost two hours. Complainant claimed that her supervisor (S1) then sent her to see her union representative and then to a meeting with management. Complainant alleged that she was assigned duties for over three hours when contractually, she should not go over two hours without a break. S2 stated that employees are required to have a 30-minute lunch break between the beginning of the fourth hour and the end of the sixth hour of their shift. S2 asserted that Complainant received a 47-minute meal break during that timeframe on the day in question. 2020003178 4 On October 19, 2018, Complainant claimed that she was skipped for lunch to let several other Controllers go and held on position for almost two hours. Complainant alleged that S2 instructed her to go see her union representative and then to a meeting with management. During the meeting with management, Complainant stated that she learned that she would be serving the entire 14-day suspension. Additionally, Complainant asserted that S2 revoked her CIC duties. S2 explained that employees are not to spend more than two hours performing operational duties without a break. S2 added that Complainant was on position for 98 minutes, then sent to receive her suspension letter, to meet with her union representative, and then sent to break. S2 stated that Complainant was out of operational duties for 47 minutes before going to break. S2 affirmed that the CIC position was based on trust and Complainant was not trusted to perform the duties due to her lack of candor. Complainant claimed that she twice asked to have the dates of her suspension changed because the dates were close to Christmas and she had travel and family plans. AGM affirmed that she denied the requests because scheduling would not allow the dates to be moved. AGM noted that Complainant’s husband was allowed to change his suspension dates because he was in a different work group. Claim 8 - Shift Change Request Denied Complainant claimed that she requested a change from a day shift to night shift for November 18, 2018, through the Agency’s Webschedules system on November 13, 2018. Complainant stated that it was denied by S2 on November 14, 2018. Complainant claimed that there was no reason to deny the request because the day shift was overstaffed. Complainant stated her union representative went to another manager to have the shift change approved; however, by the time the change was approved, it was too late to confirm her plans. S2 explained that it was not unusual for a shift change request to be denied and that rather than take the risk of not having adequate staff, employees are encouraged to swap shifts. S2 noted that schedules were published 28 days in advance. Claims 9 - 11 - Management Investigation and Suspension Complainant stated that in September 2018, her ex-husband shared his Webschedules password with her, so that she could check his work schedule and arrange their childcare calendar. She claimed that she did not realize that doing so was any kind of violation. Complainant’s ex- husband works with the ex-wife of the Complainant's current husband. Complainant stated that when she did log in to his schedule, she realized that her husband's ex-wife was lying about her schedule to deny her husband time with his children. She asserted that she shared this information with her husband. Complainant alleged that the ex-wife then claimed that her Webschedules had been hacked. Complainant said that she was cleared of any wrongdoing; however, AGM was not satisfied with this and ordered her own investigation. 2020003178 5 During the Weingarten meeting regarding the matter, Complainant’s union representative requested a different interviewer because the Support Manager (SM) made her feel intimidated in previous meetings and the request was denied. Complainant further alleges that the questions made no sense. SM affirmed that she was aware that the request was discussed, but ultimately denied. SM denied that the questions asked during the meeting were inappropriate. On July 11, 2019, Complainant was issued a Notice of Proposed 14-Day Suspension for inappropriate conduct. Complainant’s new supervisor (S1-2), S2, and the Labor Relations Specialist (LRS) had met twice regarding the matter and LRS recommended that Complainant be issued a proposed suspension based on the Agency’s Table of Penalties and her disciplinary history. Following her response to the notice, the suspension was mitigated down to five days. Complainant’s ex-husband received a lesser suspension because he had not been previously disciplined. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that Agency management subjected her to discrimination or reprisal as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant raises new allegations of discrimination that occurred after the filing of this complaint. In addition, Complainant contends that the statements in the final agency decision are inaccurate. She stated the Agency was aware of her EEO activity because the Agency declined mediation, which she says showed management “knows they were aware of my complaint prior to issuing the 14-day suspension, as well as the remainder of her claims.” She contends that the Agency’s articulated reasons are not credible and that she proved discrimination and harassment. Accordingly, Complainant requests that the Commission reverse the final decision. 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, at Chapter 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”). 2020003178 6 Disparate Treatment Section 717 of Title VII, as amended, requires that all Federal personnel actions are free of unlawful discrimination on the bases of race, sex, color, national origin and religion. See 42 U.S.C. § 2000e-16. Reprisal is also unlawful under Title VII. A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. We will assume for purposes of our analysis that Complainant established a prima facie case of discrimination and reprisal. Here, as more fully discussed above, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Management received information that Complainant was videotaped drinking a beer in the cockpit, operating the radio, and identifying herself as an Air Traffic Controller. Complainant was re-briefed regarding the Agency’s Social Media Policy to remind her that the off-duty conduct of an Agency employee could reflect on the Agency. Further, management explained that it reviewed a tape that involved Complainant’s fiancé’s aircraft and it became obvious that the aircraft had been in use on days that they called in sick. Complainant was issued a 14-day suspension and subsequently lost her CIC duties after she displayed a lack of candor during interviews regarding the matter. Management did not deny Complainant all of her requested administrative leave to respond to the proposed suspension; rather, she was granted as much as staffing would allow. Further, management officials confirmed that Complainant was not denied lunch breaks in accordance with policy and management officials always attempt to ensure lunch breaks occur in order. Complainant’s requests to change the dates of her suspension were denied due to scheduling conflicts. Likewise, it was not unusual for a shift change request to be denied, and employees were encouraged to swap shifts instead to ensure coverage. Finally, Complainant was issued a second proposed suspension for inappropriate conduct for using her ex-husband’s Webschedules password and sharing information related to her ex-husband’s schedule with her husband who then used that information in a mediation with his ex-wife. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. 2020003178 7 Complainant does not carry her burden here. Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency's explanations for its actions were pretext intended to mask discriminatory or retaliatory motivation. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment Finally, to the extent that Complainant contends that she was subjected to a hostile work environment with respect to the matters herein, the Commission finds that a finding of a hostile work environment is precluded by the Commission's determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, the Commission finds that Complainant has not established that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. Finally, to the extent that Complainant raised new claims on appeal, she is advised to contact an EEO Counselor if she wishes to pursue these new matters. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision for the reasons stated herein. 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). 2020003178 8 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. 2020003178 9 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 21, 2021 Date