Stephen F.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Sep 14, 2018

0120161863 (E.E.O.C. Sep. 14, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Stephen F.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120161863

Agency No. 201425750FAA02

DECISION

On May 12, 2016, 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 25, 2016 final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 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 a Compliance and
Enforcement Inspector at the Agency’s headquarters in Washington, D.C.

On August 4, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of reprisal for prior protected EEO activity under Section 501 of the
Rehabilitation Act of 1973 when:

1. He was denied telework during non-inspection weeks;
2. On June 5, 2014, a surveillance team arrived after he completed an inspection, forcing
him to redo the inspection in front of the team; and

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.
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3. On June 23, 2014, he was denied overtime pay when directed to work more than eight
hours in a day and more than 40 hours in a workweek.

At the conclusion of the 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 requested a hearing but
subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

The Agency dismissed claim 1 for untimely EEO counselor contact in accordance with 29 C.F.R.
§ 1614.107(a)(2).

With regard to claim 2, the Agency found no evidence that Complainant was subjected to
surveillance on June 5, 2014 in retaliation for his prior EEO activities. The Agency found that
management had articulated legitimate, nondiscriminatory reasons for allowing two Team
Coordinators to observe Complainant at an inspection site. Specifically, the Agency noted that
one of the Team Coordinators requested permission from management to observe inspectors in the
field because he was new to the Agency. The Team Coordinator reported that management allowed
him to observe Complainant’s team because there were no other teams in the local area. The Team
Coordinator denied having knowledge of Complainant’s prior EEO activities, and refuted
Complainant’s allegation that another employee required Complainant to redo the inspection.

With regard to claim 3, the Agency found no evidence to support Complainant’s allegation that he
was denied overtime in retaliation for his prior EEO activities. The Agency noted that
Complainant was informed on June 24, 2014, that all employees in his position were ineligible for
overtime.

Additionally, the Agency determined that Complainant failed to show that management’s
articulated reasons were a pretext for discrimination. Specifically, the Agency found that
Complainant had failed to provide sufficient evidence to show that reprisal was a motivating factor
in management’s decision making process.

ANALYSIS AND FINDINGS

Initially, we observe that Complainant did not challenge the Agency’s dismissal of claim 1 for
untimely contact with an EEO counselor. Therefore, we shall not address claim 1.

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
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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”).

Complainant contends that the Agency violated common consent laws by requiring him to work
in excess of eight hours a day without overtime compensation and by forcing inspectors to either
report to work at the end of their TDY tour or put in for leave for the rest of their tour. Complainant
alleges that such actions violate Title 5 of the U.S.C., FAA Human Resources Policy Manuals
(HRPM), and the agreement between the Agency and the Union. Complainant also argues that his
second line supervisor is aware that his first supervisor has been conducting surveillance on him.

Complainant may establish a prima facie case of reprisal by showing that: 1) he engaged in a
protected activity; 2) the Agency was aware of the protected activity; 3) subsequently, he was
subjected to adverse treatment by the Agency; and 4) a nexus exists between the protected activity
and the adverse treatment. See Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the
protected activity within such a period and in such a manner that a reprisal motive is inferred. Clay
v. Dep’t of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). Once Complainant
establishes a prima facie case, the burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the Agency has met its burden, Complainant bears the ultimate burden to
persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of
a prohibited reason. St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

The Commission has stated that adverse actions need not qualify as “ultimate employment actions”
or materially affect the terms and conditions of employment to constitute retaliation. EEOC
Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington
N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision
protects individuals from a retaliatory action that a reasonable person would have found
“materially adverse,” which in the retaliation context means that the action might have deterred a
reasonable person from opposing discrimination or participating in the EEO process).

We shall assume arguendo that Complainant set forth a prima facie case of reprisal with regard to
the alleged surveillance incident on June 5, 2014. The Agency found that the alleged surveillance
incident arose when a new Team Coordinator requested the opportunity to observe inspectors in
the field. The Agency explained that management allowed the Team Coordinator to observe
Complainant because Complainant’s team was the only team in the local area. The Commission
finds that the Agency articulated a legitimate, nondiscriminatory reason for the alleged incident.
Although Complainant alleges on appeal that such action was retaliatory in nature, the
Commission finds that the Complainant has failed to show that the Agency’s explanation was a
pretext for discrimination.

The Commission also agrees with the Agency’s finding of no discrimination with regard to claim
3. We shall again assume arguendo that Complainant set forth a prima facie case of reprisal.
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Although the record shows that the Agency denied Complainant’s request for overtime on June
23, 2014, we find that the Agency has articulated a legitimate, nondiscriminatory reason for its
employment action. Specifically, the record shows that the Agency uniformly denies overtime
requests from inspectors. While both Complainant and the Union disagree with the Agency’s
policy, Complainant has failed to show that the Agency’s explanation was a pretext for
discrimination.

Absent discriminatory motive, the Commission cannot second-guess the Agency’s personnel
decisions unless there is evidence of discriminatory motivation on the part of the officials
responsible for making those decisions. Consequently, we find that Complainant has failed to
show that the Agency discriminated against him.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
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Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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

September 14, 2018
Date