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

Equal Employment Opportunity Commission

Jul 19, 2021

Appeal No. 2020001622 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sylvester D.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2020001622 Agency No. 201827583FAA05 DECISION On December 9, 2019, 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 November 22, 2019, final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented concerns whether the Agency subjected Complainant to discrimination on the bases of race, color, disability, and age, when his chain of command proposed and effectuated a 14-day suspension, placed him on Absent Without Leave status, harassed him, and ultimately proposed his removal. 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. 2020001622 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Airway Transportation Systems Specialist, FV-2101-H, at the Agency’s Dallas/Fort Worth Air Traffic Control Tower, West Terminal Radar Approach Control facility in Dallas, Texas. On November 28, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), color (black), disability (physical), age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973. The Agency framed Complainant’s allegations in the following manner for investigation: A. Whether Complainant was discriminated against based on reprisal when, on or about October 4, 2017, he received a Letter of Proposed Suspension for 14 days;2 B. Whether Complainant was discriminated against based on his race, color, age, disability, and reprisal when, on or about January 17, 2018, he received notice that he would be suspended for 14 days from January 18, 2018 through January 31, 2018; C. Whether Complainant was discriminated against based on his race, color, age, disability, and reprisal when, on February 13, 2018, he was placed on Absent Without Leave (AWOL) status for 10 hours when he was on workers’ compensation; D. Whether Complainant was subjected to harassment on the bases of race, color, age, disability, and reprisal. In support, Complainant asserted he was subjected to events such as: 1. While Complainant was out of the office on workers’ compensation, his supervisor sent him emails and text messages which Complainant asserted were designed to harass him; 2. When Complainant was assigned to administrative duties, his supervisor directed him to do a job, but when he arrived, it was already completed. When he informed his supervisor that he needed someone to pick him up, his supervisor stated that he would not send anyone; and 3. Complainant’s supervisor sent the police to his home when Complainant did not report to work after completing his suspension.3 2 The record reflects that Complainant was issued the proposal on October 3, 2017. See Report of Investigation (ROI) at 529. 3 The Agency subsequently dismissed a fourth event raised for failure to state a claim. Because Complainant has not raised this claim on appeal, we will not review the propriety of the dismissal. 2020001622 3 Complainant subsequently amended his formal complaint, to include the following claim: E. Whether Complainant was discriminated against on the basis of reprisal when, on March 28, 2018, he received a package of proposed termination, effective April 28, 2018.4 At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing; however, on August 14, 2019, the assigned AJ issued a notice of intent to issue a decision without a hearing, as the AJ found no evidence that Complainant had been subjected to discrimination. In response to the AJ’s notice, Complainant withdrew his request for a hearing. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), which found that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In finding no discrimination on claims A, B, C, and E, the Agency determined that Complainant’s chain of command had legitimate, nondiscriminatory reasons for taking the alleged actions. Specifically, with regard to claims A and B, the Agency found that Complainant’s chain of command proposed and effectuated Complainant’s suspension for disciplinary reasons (i.e., Complainant’s lack of candor, refusal to carry out assignments, and refusal to turn off recording device). For claim C, the Agency found that Complainant was temporarily marked AWOL because Complainant failed to provide his chain of command with medical documentation to corroborate his absence. As for claim E, the Agency found that the proposed removal was not disciplinary in nature but was based on Complainant’s inability to perform the essential functions of his position. The Agency emphasized that Complainant’s chain of command proposed Complainant’s removal only after an Agency wide search for vacant, funded positions within Complainant’s restrictions and preferences was unfruitful. Though Complainant argued that such reasons were pretext for discrimination because the Agency did not take disciplinary action against two of his Caucasian coworkers who also allegedly failed to show up for work, the Agency found no evidence that these individuals missed work on the alleged dates. 4 In his amended complaint, Complainant also alleged that the Agency proposed his removal because of his disability (claim F). However, the Agency dismissed this claim pursuant to 29 C.F.R. § 107(a)(5), as it constituted a preliminary step to taking a personnel action. The Agency also dismissed Complainant’s allegation that the Agency discriminatorily failed to approve his request for medical retirement because of his disability and involvement in prior EEO activity (claim G). Because Complainant has not raised these claims on appeal, we will not review the propriety of these dismissals. We further note that Complainant has not alleged that he was denied a reasonable accommodation. 2020001622 4 Because Complainant could not offer any other evidence to rebut the Agency’s articulated reasons, the Agency concluded that Complainant failed to prove his allegations of discrimination. As for Complainant’s allegation of harassment, the Agency concluded that Complainant failed to show that the underlying incidents in claim D were causally related to his protected characteristics. The instant appeal followed. . CONTENTIONS ON APPEAL On appeal, Complainant disputes the Agency’s finding of no discrimination and urges the Commission to reverse the Agency’s final decision. In so arguing, Complainant asserts that the suspension was unwarranted because he did in fact show up for work according to the schedule book and was honest during the internal investigation. Complainant also takes direct aim at the Agency’s finding that the two Caucasian individuals whom he cited as comparators were not similarly situated to him because the record failed to corroborate Complainant’s contention that these individuals did not show up for work. He asserts that contrary to the Agency’s finding, both individuals were scheduled to work and did not show up. Furthermore, Complainant asserts that the proposal to remove him from federal service was inappropriate became he has been on workers’ compensation since September 2017 and was coded on the Agency’s payroll as such. Complainant further contends that that the Agency actions were a coverup for harassment. The Agency opposes Complainant’s appeal and requests that the Commission affirm its final decision. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS Disparate Treatment For Complainant to prevail on claims A, B, C, and E, concerning his allegations of disparate treatment discrimination, he must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2020001622 5 Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. With regard to claims A and B, the record reflects that the Agency proposed and issued Complainant a suspension for disciplinary reasons, i.e., Complainant’s lack of candor, refusal to carry out assignments, and refusal to turn off recording device. For claim C, the record reflects that the Agency initially marked Complainant as AWOL due to Complainant’s failure to submit medical documentation to corroborate his absences; however, when Complainant submitted the requested medical documentation, the Agency changed Complainant’s status to OWCP leave. As for claim E, the record reflects that the Agency proposed Complainant removal because Complainant could not perform the essential functions of his position, and there were no vacant, funded positions available that met Complainant’s geographical and salary requirements. In arguing pretext, Complainant maintained that his suspension was inappropriate because he worked his assigned schedule as reflected in the schedule book and was honest during the internal investigation into the matter. Furthermore, Complainant argued that it was not unlawful to record conversations. In support of these contentions, Complainant offered two Caucasian comparators, who were allegedly not disciplined for being absent from work. With regard to claim C, Complainant reiterated that management did not have right to mark him as AWOL because he was on OWCP leave at the time. As for the proposed removal, Complainant stated that Agency’s proposal must have been based on retaliatory animus because that was the only possible reason he could surmise. Having reviewed the record, we find that Complainant cannot persuasively show that he was subjected to discrimination as alleged. Even if we assume arguendo that Complainant did indeed work his assigned schedule and was honest during the internal investigation, we are still disinclined to infer discriminatory motivation with regard to the suspension because the preponderant evidence shows that Complainant recorded the meeting and refused to turn off the recording device when directed. In reaching this conclusion, we considered Complainant’s offer of comparators; however, we find that these individuals were not similarly situated to Complainant, as neither comparator was accused of refusing to stop recording conversations when directed. 2020001622 6 For claim C, while we are mindful that Complainant was on OWCP leave at the time he was marked AWOL, we find that Complainant has not persuasively rebutted management’s contention that such action was due to his failure to submit the requested medical documentation. As for the proposed removal, we find Complainant’s bare bones rebuttal to be insufficient to rebut the Agency’s explanation. Harassment/Hostile Work Environment Claim We turn now to claim D, concerning Complainant’s hostile work environment claim.5 To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). With regard to Complainant’s allegation that he was subjected to harassment, we will assume arguendo that the events occurred as Complainant described and were unwanted. However, we find that has not shown that the alleged incidents occurred because of his protected characteristics. To the contrary, we find that the record persuasively shows that the alleged instances of harassment were related to Complainant’s job duties or his conduct. In reaching this conclusion, we gave due consideration to Complainant’s contention that his supervisor harassed him by calling the police to his home for a welfare check; however, we do not find that allegation to be sufficiently severe or pervasive to constitute harassment, as the record persuasively shows that Complainant’s supervisor requested a welfare check out of concern for Complainant’s wellbeing. To the extent that his supervisor acted unprofessionally towards him by sending him emails and text messages while he was on leave, we note that anti-discrimination laws are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Complainant has not shown that his supervisor’s conduct had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. Furthermore, we find no persuasive evidence that the supervisor’s actions were reasonably likely to deter an individual from pursuing his EEO rights. Accordingly, we find that the conduct at issue was not sufficiently severe or pervasive enough to result in a hostile work environment. 5 A finding of harassment on claims A, B, C, and E is precluded due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). 2020001622 7 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final 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). 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. 2020001622 8 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. 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 July 19, 2021 Date