[Redacted], Rodrigo C., 1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.Download PDFEqual Employment Opportunity CommissionJan 8, 2021Appeal No. 2020003953 (E.E.O.C. Jan. 8, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rodrigo C.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020003953 Hearing No. 560-2018-00118X Agency No. 2017-27313-FAA-01 DECISION On June 8, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 13, 2020 final order concerning his 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. BACKGROUND During the period at issue, Complainant worked as an Electronics Engineer Contractor at the Agency’s Chickasaw Nations Industry, Mike Monroney Aeronautical Center (MMAC) in Oklahoma City, Oklahoma. On May 10, 2017, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on race (African-American) when, on February 14, 2017, his qualifications were inaccurately assessed, and he was wrongly found ineligible for consideration for the positions of Industrial Engineer, FV-0896-I/I, advertised under Vacancy Announcement No. ACT-AJW-17-MAQ1782-49993 and Computer Engineer, FV-0854-I/I, advertised under Vacancy Announcement No. ACT-AJW-17-MAQ1782-49990. 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. 2020003953 2 After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency submitted a Motion for Summary Judgment. Complainant responded to the motion. On May 11, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS 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. 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). 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 animus. Here, however, Complainant 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. The record developed during the investigation established the following undisputed facts. Since 2002, Complainant worked as an Electronics Engineer Contractor at the Agency’s Chickasaw Nations Industry, Mike Monroney Aeronautical Center (MMAC) in Oklahoma City, Oklahoma. On October 27, 2016, Complainant applied for a Computer Engineer position and on November 4, 2016, he applied for an Industrial Engineer position with the Agency’s Oklahoma City facility. On both applications, Complainant answered “No” in response to the question of whether he had a professional engineering degree. In his affidavit, Complainant confirmed that he had no professional engineering degree. 2020003953 3 Although the positions Complainant applied for were at the Agency’s Oklahoma City facility, the Agency’s Atlantic City Human Resources (HR) Office reviewed the applications. Complainant claimed that the Atlantic City HR office discriminated against him based on race when the HR office determined that Complainant’s applications did not meet the basic requirements for the jobs and therefore did not forward his applications to the hiring officials in Oklahoma City. On December 7, 2016, Complainant sent an email to the Agency’s Atlantic City HR office employees regarding the determination that HR found him ineligible for the two positions at issue. In his email, Complainant stated that he spoke with an HR official “on Thursday,” and that he disagreed with [HR official’s] finding that he was ineligible. The same day, the HR official replied via email with an explanation of why she found Complainant ineligible. The HR official’s explanation was detailed, and explained that Complainant did not have a professional engineering degree, and did not qualify via the alternative methods of qualification: combination of education and experience. The following day, December 8, 2016, Complainant replied to the HR official’s email stating that he disagreed with her assessment and wrote a lengthy email explaining the reasons for his disagreement. On December 22, 2016, the HR official’s manager replied stating that, “Our original assessment stands.” She then explained the reasons for affirming the HR official’s original conclusion, stating that in part that HR could not glean from Complainant’s resume that he met the qualifications for the subject positions. Further, the manager provided suggestions as to how to format his application on future vacancy announcements. On January 3, 2017, Complainant replied thanking the manager for her explanation and asking another question to which she answered the same day and wished him luck on his future applications. The record reflects that both the HR official and the manager asserted that they were not aware of Complainant’s race until after he filed the instant complaint. There was nothing in Complainant’s applications or resume that identified his race. Complainant acknowledged that he had never met any of the Atlantic City HR employees before nor had he ever spoken to them on the phone prior to filing the instant EEO complaint. In his affidavit, Complainant stated that he was merely “speculating” that the HR officials knew his race. The record reflects that no selections were made from Industrial Engineer, advertised under Vacancy Announcement No. AJW-17-MAQ 1782-49993. However, there were two selections made from the Computer Engineer, advertised under Vacancy Announcement No. ACT-AJW-17- MAQ-49990. One selectee was African-American and the other one was Caucasian. Out of twenty-three applicants for the two positions, only three applicants were referred by the HR to the hiring officials, and twenty applicants, including Complainant, were not referred, mostly because they did not meet the basic qualifications for the positions. 2020003953 4 In his decision, the AJ determined that Complainant has not provide any evidence “nothing more that speculation and improbable inferences that HR officials - half-way across the country and whom he had never met-could have possibly even known his race, let alone considered it. Moreover, HR’s reasons for its determinations were contemporaneously documented and did not include race. The only applicant who did include information about her race, was referred by HR to the selecting official [emphasis in its original].” In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the Agency articulated legitimate, non- discriminatory reasons for the disputed actions. Beyond bare assertions, Complainant has provided no evidence to support his claim that his treatment was due to race. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2020003953 5 In the absence of a legible postmark, 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. 2020003953 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 January 8, 2021 Date Copy with citationCopy as parenthetical citation