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

Equal Employment Opportunity Commission

Apr 28, 2021

Appeal No. 2019005806 (E.E.O.C. Apr. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilburn M.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Request No. 2020002907 Appeal No. 2019005806 Agency No. 2011-23844-FAA-02 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019005806 (February 27, 2020). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). The Agency’s request is DENIED. On August 31, 2010, Complainant was an applicant for employment with the Agency for the position of Airway Transportation Systems Specialist, FV-2101-J (Vacancy Announcement No. AWA-AJE-10-JM78588-124396) and the position of Electronics Technician FV-0856-J (Vacancy Announcement No. AWA-AJE-10-JM78696-124395M), both located in Fort Worth, Texas. He was not selected for either position. Believing that his non-selections were discriminatory, Complainant filed a formal EEO complaint in August 2011, based on race 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. 2020002907 2 (African-American), color (brown), sex (male), disability, age (born 1947), and/or unlawful retaliation for prior protected EEO activity. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. After numerous motions by both parties and the dismissal of several claims, the AJ assigned to the case issued a decision without a hearing on August 9, 2019. The AJ found that Complainant established a prima facie case of discrimination when he was not selected for the Airway Transportation Systems Specialist position. Turning to the Agency’s proffered legitimate, non-discriminatory reasons, the AJ noted the Selecting Official’s (SO) (white male, age 39) belief that Selectee was better qualified. The AJ observed that, although the Agency asserted that it selected the best-qualified applicant, it “prematurely destroyed the selection packages for [Complainant] and the other candidates.” The AJ noted that, “conveniently,” SO only retained and returned Selectee’s application to HR. Subsequently, the AJ concluded, “while it appears on its face that the Agency articulated legitimate, non- discriminatory reasons for its decision not to hire [Complainant] for the position, they are not worthy of belief.” The AJ noted that the Agency failed to retain relevant records following notice that a complaint had been filed. Moreover, the AJ emphasized that this was not the first time the Agency failed to produce selection documents for Complainant or others. Consequently, the AJ reasoned that the Agency’s failure warranted application of the “adverse inference rule,” namely that if the information had been provided it would have been unfavorable to the Agency and favorable to Complainant. The AJ stated that such action was appropriate, even in the absence of bad faith, in order to deter future improper conduct. As a result of the adverse inference, Complainant was found to be the superior applicant who should have been selected for the Airway Transportation Systems Specialist position. The AJ ordered the Agency to take the following actions: retroactively place Complainant in the position, determine the appropriate amount of back pay and related benefits from the date of non- selection until February 19, 2011, and compensate Complainant for attorney’s fees. On September 18, 2019, the Agency issued a final order rejecting the AJ’s finding of discrimination and concurrently filed an appeal with the Commission. On appeal, the Agency argued that the AJ abused her discretion by drawing a “non-rebuttable inference of discrimination” (emphasis in original) based upon the “accidental loss” of the applications. The Agency contended that neither Complainant nor the EEO process was undermined by the unintentional loss because Complainant provided his application for the position during discovery, SO attested to the reasons for Complainant’s non-selection based on Complainant’s application for a related position, and Complainant’s applications for both positions were identical. The Agency argued that the adverse inference imposed by the AJ was more severe than necessary to deter the Agency from losing applications in the future. The Agency suggested 2020002907 3 that the AJ could have held a hearing to evaluate the credibility of SO’s explanation for not selecting Complainant. The Agency requested that the Commission affirm its rejection of the AJ’s finding of discrimination as well as the relief ordered. Complainant also filed a cross-appeal, challenging the AJ’s decision not to award compensatory damages and to award reduced attorneys’ fees. On February 25, 2020, the Commission concluded that even if we were to accept the Agency’s reasoning concerning the AJ’s application of the adverse inference, the evidence of record nonetheless supported a finding of discrimination. In light of the weaknesses, inconsistencies, and contradictions in the record, the Commission found that Complainant had met his burden in establishing that the Agency’s proffered reasons were unworthy of credence. With regard to Complainant’s contentions regarding compensatory damages, the Commission agreed with the AJ that Complainant had not put forth any evidence showing non-pecuniary losses related to the discriminatory non- selection and also found that the AJ’s award of attorney’s fees and costs was proper. In its request for reconsideration, the Agency reiterates arguments previously made and considered on appeal. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. We emphasize that a request for reconsideration is not a second appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VII.A. (Aug. 5, 2015). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here. The decision in EEOC Appeal No. 2019005806 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER To the extent that it has not already done so, the Agency shall take the following actions previously ordered by the AJ within one hundred and twenty (120) calendar days from the date this decision is issued (unless otherwise indicated): (1) With sixty (60) calendar days from the date this decision is issued, the Agency shall place Complainant into the position of Airway Transportation Systems Specialist, FV-2101-J (or substantially similar position), in Fort Worth, Texas, retroactive to February 19, 2011. The Agency shall also retroactively promote Complainant to the next step and/or grade, if appropriate under Agency policy, on the one-year 2020002907 4 anniversary of his placement and then on an annual basis or according to the Agency policy. (2) The Agency shall determine the appropriate amount of benefits (with interest and offsets) if applicable, due Complainant effective February 19, 2011 to the date of his placement in the position or the date he declines the position. Complainant shall cooperate in the Agency’s efforts to compute the amount of benefits due and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer at the Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, D.C. 20013. (3) The Agency shall compensate Attorney 1 [identified in AJ’s decision] with $25,731.57 in attorney’s fees and expenses. (4) The Agency shall compensate Attorney 2 [identified in AJ’s decision] with $7,627.97 in attorney’s fees and expenses. (5) The Agency shall post the Notice attached hereto for ninety (90) days in all places where notices to employees are customarily posted, that discrimination has been found in this complaint. (6) The Agency shall take immediate steps, to provide a minimum of eight (8) hours of non-discrimination training with a focus on non- discrimination in hiring and promotion, and EEOC records retention regulations, to S1. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Fort Worth, Texas facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the 2020002907 5 date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. 2020002907 6 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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, Director Office of Federal Operations April 28, 2021 Date