[Redacted], Maynard K., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.Download PDFEqual Employment Opportunity CommissionJun 24, 2021Appeal No. 2020003222 (E.E.O.C. Jun. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maynard K.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020003222 Agency No. 2018-28056-FAA-04 DECISION On April 23, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 6, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Controller at the Agency’s FAA Chicago Terminal Radar Approach Control (TRACON) in Elgin, Illinois. On December 10, 2018, Complainant filed a formal EEO complaint alleging he was subjected to disparate treatment and/or discriminatory harassment based on his race (American Indian/Caucasian), sex (male), religion (Christianity), and/or in reprisal for filing the instant complaint when: 1. On April 23, 2018, he and members of the Chicago TRACON (C90) management met concerning his placement on another Supervisory Traffic Management Coordinator (STMC) position concurrently with operational positions, while working in the TRACON. 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. 2020003222 2 2. On June 18 and 22, 2018, he had meetings with management in which management discussed his personal YouTube videos and shared information about FAA policies for the use of social media. On July 30, 2018, a facility management official voiced his dislike of Complainant’s YouTube videos to a facility union official and told him that if he “would stop them then they would stop harassing you.” 3. On July 15, 16, and 19, 2018, he was ordered to attend Weingarten meetings and on August 24, 2018, during a Weingarten meeting he was informed that an August 21, 2018 email was inappropriate. 4. On September 21, 2018, a management official requested that he quickly review and return a folder containing proposal to suspend documentation, and on October 21, 2018, management violated his privacy by releasing information surrounding the circumstances of his suspension. 5. On September 28 and 29, 2018 and October 2, 2018, he was denied excused absence/official time. 6. On October 14, 2018, he was charged Absent Without Leave (AWOL) for October 5, 6, and 7, 2018. 7. By decision dated October 19, 2018, he was suspended for 14 calendar days (October 26, 2018-November 8, 2018). 8. On October 22, 2018, his Controller-In-Charge duties were restricted resulting in a 10% decrease in pay. 9. On October 23, 2018, the ATM, Chicago TRACON (C90) instructed him to immediately move to another air traffic controller area. 10. On October 24, 2018, he was accused of manipulating time and attendance (CruArt) data. 11. On April 30, 2019, he was required to participate in a Weingarten meeting regarding discipline following a closed-out security investigation from February 2019.2 On April 9, 2019, the Agency dismissed four other claims for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). As Complainant has not contested the dismissal on appeal, these additional allegations will not be addressed in this decision. 2 The record reflects that claim 11 was later amended to the instant complaint. 2020003222 3 After the investigation of the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on March 6, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See 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, as here, 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 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 claims 1 and 10, Complainant asserted that on April 23, 2018, he and members of the Chicago TRACON (C90) management met concerning his placement on another Supervisory Traffic Management Coordinator (STMC) position concurrently with operational positions while working in the TRACON, and on October 24, 2018, he was accused of manipulating time and attendance (CruArt) data. The Supervisory Traffic Management Coordinator (“S1”) (Caucasian, Christian, male), also Complainant’s supervisor, explained that Complainant had been signed in concurrently for STMC and the controller position. 2020003222 4 S1 directed Complainant to stop doing so because he was not entitled to the 10% pay premium that employees are entitled to for the STMAC position when working a controller position. S1 noted that when, on April 23, 2018, Complainant was again signed in concurrently for the STMC and the controller position, and S1 requested Complainant to meet with him and his union representative. Specifically, S1 directed Complainant to stop the behavior because he could get into trouble. He further stated that no disciplinary action was taken. Regarding claim 2, Complainant alleged that on June 18 and 22, 2018, he had meetings with management in which management discussed his personal YouTube videos and shared information about FAA policies for the use of social media and on July 30, 2018, a facility management official voiced his dislike of his YouTube videos to a facility union official and told him that if he “would stop them then they would stop harassing you.” The Acting General Manager (“S3”) (Caucasian, Catholic, female), also Complainant’s third line supervisor, stated that she received an email complaint from a concerned citizen relating to a YouTube video posted by Complainant in which his fiancé (also an Air Traffic Controller) appeared on the video. In the video, Complainant’s fiancé was a passenger, but was present in the cockpit while she was drinking beer. S3 stated that she had the Legal and Ethics Department review the video and asked for advice on the situation. S3 asked the Operations Manager (“S2”), also Complainant’s second supervisor, to meet with Complainant to ensure he understood the concern. Further, S3 concurred with S2’s statement that Complainant did not fully understand the policy even after the June 18, 2018 meeting so she met with Complainant on June 22, 2018, to re-emphasize the policy. Regarding claims 3 and 7, Complainant alleged that on July 15, 16, and 19, 2018, he was ordered to attend Weingarten (pre-disciplinary) meetings, and on August 24, 2018, during a Weingarten meeting he was informed that his August 21, 2018 email was inappropriate, and by decision dated October 19, 2018, Complainant was suspended for 14 calendar days (October 26, 2018- November 8, 2018). S1 explained that Weingarten meetings are used as fact-finding meetings. S1 stated that he conducted the first Weingarten for an abuse of sick leave. Complainant and his wife flew to Nashville for dinner after their shift day, and the next day, Complainant and his wife called in sick for the next shift. S1 noted there was a video posted that suggested that Complainant’s intent was more than simply to go to dinner and then return, because his wife had multiple changes of outfits. The record reflects that the overall conclusion of the Weingarten meeting was that Complainant was being less than candid in responding the questions. Subsequently, Complainant was charged with a Lack of Candor. Furthermore, S1 noted that while Complainant is an excellent operations employee and the concerns he included in the email were appropriate. S1 stated, however, Complainant sent an email without considering the proper of chain of command. S1 spoke to Complainant about why Complainant should have not sent the email, and no other action was taken. 2020003222 5 Regarding claim 4 - 6, Complainant claimed that on September 21, 2018, a management official requested that he quickly review and return a folder containing a “proposal to suspend” documentation, and on October 21, 2018, management violated his privacy by releasing information surrounding the circumstances of his suspension. He also alleged that on September 28 and 29, 2018 and October 2, 2018, he was denied excused absence/official time. Finally, he asserted that on October 14, 2018, he was charged Absent Without Leave (AWOL) for October 5, 6, and 7, 2018. S2 stated that Complainant was placed on Sick Leave restriction for a six-month period for calling in sick on June 2018 and this restriction requires him to provide a doctor’s note in connection with taking sick leave and if he failed to do so he would be charged AWOL until he provided the required medical documentation. The record reflects that Complainant provided the required medical documentation and his AWOL was removed. Regarding claim 8, Complainant claimed that on October 22, 2018, his Controller-In-Charge (CIC) duties were restricted resulting in a 10% decrease in pay. S2 acknowledged he lost confidence in Complainant’s ability to perform CIC duties based on the lack of candor charges in his 14-Day suspension and instructed S1 to restrict his CIC duties. He also noted that on October 19, 2018, Complainant received official notification that his CIC duties had been suspended. S3 stated that as the Facility Manager, she concurred with the decision to suspend Complainant’s CIC duties after S3 consulted with the legal department and she notified him of her decision on October 19, 2018. She noted that management could no longer trust Complainant’s judgment based on the lack of candor. Regarding claim 9, Complainant claimed that on October 23, 2018, the ATM, Chicago TRACON (C90) instructed him to immediately move to another air traffic controller area. S2 stated at that time, Complainant was working as a controller and that since his suspension he had avoided working in his normal position in the Traffic Management Unit (TMU). He further stated that Complainant would often report to work and ask the employee who was assigning positions, to assign him to work as an operational sector. However, S2 stated that S3 instructed Complainant to return to his usual duties in TMU because he was needed in his usual position at that time. Regarding claim 11, Complainant asserted that on April 30, 2019, he was required to participate in a Weingarten meeting regarding discipline following a closed-out security investigation from February 2019. The Labor and Employee Relations Specialist (Caucasian, Methodist, male) stated that he was required to participate in a Weingarten meeting regarding discipline following a closed-out security investigation from February 2019. He further stated that he was aware Complainant was issued a 5-day suspension and the information during the April 30, 2019 investigation was part of the information considered issuing the discipline. 2020003222 6 The record developed during the investigation established that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. There is no evidence of any other similarly situated employee who was treated more favorably or any other indicia of discriminatory or retaliatory motivation. Complainant has simply provided no evidence to support his claim that his treatment was the result of his race, sex, religion and/or prior EEO activity. Discriminatory Harassment To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race, sex, religion or protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). To the extent that Complainant’s claims can also be construed as one of ongoing discriminatory harassment/hostile work environment, such a claim is precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 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. 2020003222 7 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). 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. 2020003222 8 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 June 24, 2021 Date Copy with citationCopy as parenthetical citation