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

Equal Employment Opportunity Commission

Nov 6, 2018

0120181074 (E.E.O.C. Nov. 6, 2018)

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

Trevor H.,1
Complainant,

v.

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

Appeal No. 0120181074

Hearing No. 460-2016-00023X

Agency No. DOT-2015-26119-FAA-05

DECISION

On January 20, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the
Agency’s February 12, 2018,2 final action concerning an 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.

ISSUES

Whether the Agency discriminated against Complainant, and subjected him to a hostile work
environment since May 2014, based on his race, sex, and in reprisal for prior EEO activity when
it placed him in a “sabotaged” training program; he was a victim of racially motivated online

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.

2 The record does not contain a copy of an Agency final order adopting the Administrative Judge’s
(AJ) decision, and neither party indicates that one was issued. For the purposes of this decision,
we will assume that the Agency did not issue a final order. The AJ issued a decision on January 2,
2018. The AJ’s decision became the final action of the Agency 40 days later, on February 12,
2018. Additionally, while we note that Complainant’s appeal was premature, the Commission
finds that the appeal is now ripe for adjudication.
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defamation; it failed to protect him and his family from nationwide public exposure after his “near
miss”; and when it terminated his training, he was subsequently forced to move at his own expense,
suffering a loss in salary and status, when he was reassigned.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Certified Professional
Controller at the Agency’s Houston Intercontinental Air Traffic Control Tower in Houston, Texas.
Prior to his transfer to Houston, Complainant engaged in EEO activity while working in Mobile,
Alabama. Report of Investigation (ROI) at pg. 67.

On May 8, 2014,3 Complainant had a “near miss” when he inadvertently gave a pilot incorrect
instructions. Hearing Transcript Vol. 1 at pg. 252. An anonymous account of the incident was
posted on a “CTI student” blog.4 ROI at pgs. 622-624. Complainant’s name, age, and location
were revealed in the blog article. The incident was also reported by other media outlets, including
CNN, which aired a recording of Complainant giving the erroneous instruction. Complainant
learned of the CNN story when his brother called to inform him that his “voice is all over the
news.” Hearing Transcript Vol. 1 at pg. 259.

On June 11, 2014, Complainant requested that the Agency investigate the source of the blog article
due to his concerns that his privacy was violated when his name and age were disclosed. ROI at
pg. 620. The Agency sent two Special Agents to investigate; they interviewed 33 air traffic
controllers. Soon after, the lead Special Agent left his position. The second Special Agent (SA)
did not realize that the investigation was unfinished until his manager asked that he take over the
investigation. SA completed the investigation, and issued the final report in November 2014.
While SA identified a “person of interest,” the results were inconclusive. Hearing Transcript Vol.
1 at pgs. 42-45, 75,101.

The “near miss” incident affected Complainant’s ability to focus, and on August 8, 2014, the
Agency conducted a training review for Complainant. The training review board recommended
that Complainant continue with his training, but with a different training team.5 ROI at pgs. 248-
250. The Agency conducted another training review for Complainant on November 21-24, 2014.

3 The incident occurred on May 9, 2014, according to the Coordinated Universal Time, or
Greenwich Mean Time. Hearing Transcript Vol. 1 at pg. 115. For the purposes of this decision,
we will consider the incident to have occurred on May 8, 2014, which was the local time.

4 CTI stands for Collegiate Training Initiative. Up to several months prior to the “near miss”
incident, the Agency gave CTI students preferential treatment in hiring. The blog site was
generally believed to be run by CTI students who were upset with the change in the Agency’s
hiring practice. Hearing Transcript Vol. 1 at pgs. 131-132, 73.

5The training review board was comprised of a union representative, a Support Manager, and a
Staff Specialist.
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The same training review board members recommended the termination of Complainant’s
training. ROI at pgs. 617-618.

On December 17, 2014, the Air Traffic Manager (ATM) (White, male, no prior EEO activity)
issued Complainant a proposal to terminate his training, and Complainant provided a response to
the proposal. ROI at pgs. 640-643. On January 14, 2015, ATM decided to sustain the termination
of Complainant’s training, and referred the matter to the National Employment Service Team.
ATM recommended that the Agency retain Complainant, but not at the Houston location. ROI at
pg. 702, Hearing Transcript at pgs. 32-33. On April 6, 2015, the Agency notified Complainant that
it had identified five (5) placement options, and Complainant selected the position at the Dulles
Air Traffic Control Tower. ROI at pgs. 723-724.

On May 12, 2015, Complainant filed a formal complaint alleging that the Agency subjected him
to harassment since May 2014; and discriminated against him on the bases of race (African-
American), sex (male), and reprisal for prior protected EEO activity arising under Title VII when:

1. he was placed in a “sabotaged” training program, which was disrupted and
undermined by co-workers, and management failed to take appropriate corrective
action;

2. he was the victim of racially motivated online defamation, which affected the
remainder of his training, and contributed to the termination of his training at the
Houston Intercontinental Air Traffic Control Tower;

3. the Agency failed to protect him and his family from nationwide public exposure
after his “near miss”; and

4. on January 14, 2015, the Agency terminated his training, and he was subsequently
forced to move at his own expense, suffering from a loss of salary and status, when
he was reassigned to the Dulles Air Traffic Control Tower.

After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant timely
requested a hearing. The Agency filed a motion for summary judgment, which Complainant
opposed. The AJ held a hearing on August 18-19, 2017, and subsequently issued a decision in
favor of the Agency.

For claim 1, the AJ found that Complainant’s training was not sabotaged or undermined by his
coworkers, but that it was conducted in accordance with Agency procedures. After the “near miss”
incident, Complainant was given additional training hours and a new training team to assist him
in getting certified. The AJ determined that the Agency’s actions were reasonable under the
circumstances, and that there was no evidence showing that the Agency’s decisions regarding
Complainant’s training were made because of his protected bases.
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With regards to claim 2, the AJ noted that the blog article made no reference to Complainant’s
race, gender or prior EEO activity. In response to Complainant’s request for an investigation, the
Agency conducted one, concluding that no links were found between the article and any Agency
personnel. More importantly, the AJ found that the blog was not controlled, sponsored, nor
approved by the Agency, and the Agency cannot be held responsible for derogatory information
found on the site. While Complainant took issue with the length of time it took to complete the
investigation, and the fact that he was not provided a copy of the report of investigation, the AJ
found that the Agency acted appropriately.

For claim 3, the AJ found that Complainant had not established that the Agency could have done
anything to prevent the public disclosure of the “near miss” incident, nor any nexus between the
media coverage and his protected categories. With regards to claim 4, the AJ determined that after
Complainant failed to complete his training, the Agency could have discharged him, but gave him
the option to transfer to a different facility. The AJ found that Complainant’s choice to transfer to
Dulles was voluntary, and any move or loss in salary was not based on his race, gender, or
protected EEO activity. The AJ further noted that none of the managers in Houston were aware of
Complainant’s prior EEO activity in Mobile, Alabama. The AJ concluded that the Agency did not
discriminate against Complainant, nor subject him to harassment, based on his race, sex, or in
retaliation for his prior EEO activity.

The Agency did not issue a final order adopting the AJ’s conclusion that Complainant failed to
prove discrimination as alleged. Complainant filed the instant appeal, and submitted a brief in
support of his appeal. The Agency filed a response on March 19, 2018.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the investigation into the blog article “is everything in this
case.” Complainant alleges that the investigation was not prompt; he was never provided a status
update on its progress; and he never received a copy of the written report. Complainant also alleges
that the AJ erred in finding that the Agency acted appropriately in handling the investigation. He
further argues that the Agency’s hiring practice was changed because the preference given to CTI
students discriminated against African American applicants. As such, Complainant’s “challenge”
of the blog was participation in protected activity.

The Agency argues that the AJ gave full and careful consideration to the record in this case, and
correctly found that the evidence shows that the Agency did not discriminate against, nor subject
Complainant to harassment, based on his race, sex, or in reprisal for prior EEO activity.

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ANALYSIS AND FINDINGS

Standard of Review

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the testimony
or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC
Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

We find that the AJ’s decision finding that Complainant has not shown that the Agency
discriminated against, or subjected him to harassment, based on his race, sex, or in reprisal for
prior EEO activity is supported by substantial evidence in the record. As discussed above, the AJ
found that Complainant had not provided any evidence showing that the Agency’s actions were
based upon his protected categories.

On appeal, Complainant argues that the Agency did not conduct a proper investigation into the
source of the blog article. Assuming, arguendo, that the Agency mishandled the investigation, we
find that Complainant has not presented any evidence showing that the Agency’s actions were
discriminatory or retaliatory. Complainant alleges that his “challenge” to the blog is protected
activity. However, we note that the Commission defines protected activity as (1) opposing a
practice made unlawful by one of the employment discrimination statutes; or (2) filing a charge,
testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing
under the applicable statue. EEOC Compliance Manual on Retaliation, No. 915.004 at II.A. (Aug.
25, 2016). We do not find Complainant’s “challenge” of an external blog site to be protected EEO
activity.

Additionally, Complainant has only made bare assertions and has not presented any evidence
showing that the AJ erred when she determined that the Agency acted properly in handling the
investigation. Accordingly, we affirm the Agency’s final action adopting the AJ’s decision finding
that the Agency did not discriminate against Complainant based on his race, sex, or in reprisal for
prior EEO activity when it placed him in a “sabotaged” training program; he was a victim of
racially motivated online defamation; it failed to protect him and his family from nationwide public
exposure after his “near miss”; and when it terminated his training, he was subsequently forced to
move at his own expense, suffering a loss in salary and status, and when he was reassigned.

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CONCLUSION

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that substantial evidence of record supports the AJ’s
determination that Complainant has not proven discrimination by the Agency as alleged.
Accordingly, we AFFIRM the Agency’s final action adopting the AJ’s decision.

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.
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).

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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

November 6, 2018
Date