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

Equal Employment Opportunity Commission

Mar 17, 2017

0120150279 (E.E.O.C. Mar. 17, 2017)

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. 0120150279

Hearing No. 460-2012-00028X

Agency No. 2011-23854-FAA-05

DECISION

The Commission accepts Complainant’s appeal from the Agency’s September 30, 2014, 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. The Commission’s review is de novo. For the following reasons,
the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Airway
Transportation Specialist at the Agency’s Air Traffic Control Center in Houston, Texas. In
2009, the union and management developed a study called the Overland Resource Group to
evaluate better means of working together. Complainant was the union representative for his
shop and was on the list of employees to be interviewed to participate in the study.
Complainant was informed by another union representative that his name had been removed
from the list by someone in management; however, his name was placed back on the list
sometime later.

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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In April 2010, Complainant attended an Easter midnight mass service where his 10 year-old
son was being baptized. Complainant received a call from work during the service asking him
to come in to cover for a co-worker’s midnight shift. Complainant informed the caller that he
would come in after the service ended, and he reported for the midnight shift following the
service.

In July 2010, Complainant attended training at the FAA Academy in Oklahoma. On or about
July 6, 2010, Complainant informed the Acting Manager (M1) that the Instructor was punching
and slapping him in the head. M1 advised Complainant to report his issues with the Instructor
to Academy management. Complainant did not report the conduct to Academy management.
On July 14, 2010, Complainant was talking to a co-worker when the Instructor approached
them. The Instructor said something to Complainant and struck him on the shoulder.
Complainant responded angrily to the Instructor and told the Instructor that if he hit him again,
he would punch him in the face. The Instructor knocked Complainant on the shoulder again
and Complainant punched in him the mouth, injuring his lips. The Instructor apologized
immediately and said that he did not mean to upset Complainant.

Management initiated an investigation into the July 14, 2010 incident. Witnesses described the
Instructor’s actions as friendly and joking and that Complainant used profanity and appeared
angry. On February 25, 2011, Complainant’s second-level manager (M2) issued Complainant
a Notice of Proposed Suspension of 45 Days. Complainant submitted a response to the notice.
On April 28, 2011, M2 issued Complainant a Decision on Proposed 45-Day Suspension
reducing the suspension to 14 days, effective June 5 through June 18, 2011. The Instructor
was later disciplined for his role in the altercation.

On November 21, 2010, two co-workers were involved in an altercation in the Environmental
System Support Center work area. Management conducted an inquiry regarding the incident.
On December 14, 2010, Complainant was called into a Weingarten meeting with one of the
individuals involved to be interviewed regarding the incident. Complainant was not involved
in the altercation, but had knowledge of the incident.

On November 20, 2010, Complainant met with the Acting Environmental System Support
Center Manager (AM) regarding conflicting times on Complainant’s preventative maintenance
logs. Additionally, they discussed that Complainant had logged completed maintenance on the
Chiller 500; however, the Chiller 500 had been reported as reduced equipment since
September 2010. AM had concerns that Complainant was falsifying equipment maintenance
records. On January 28, 2011, M1 conducted a Weingarten investigation regarding AM’s
report that Complainant had allegedly falsified equipment maintenance records. During the
investigation, Complainant claimed that he had not received proper training. Following the
investigation, M1 concluded that the allegations of falsification of the equipment maintenance
records were substantiated. M1 further concluded that Complainant had attended training in
May and September 2010 regarding that type of maintenance; however, Complainant appeared
to not have a clear understanding of the processes established in the Technical Orders and
Technical Performance Record management or his duties as a senior specialist. As a result,
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M1 determined that Complainant needed additional training and coaching and that he should
only be given a Letter of Concern regarding the issue.

On March 29, 2011, Complainant attended a retirement celebration in the break room. The
Acting Environmental System Support Center Supervisor (AS) put his hand on Complainant’s
shoulder. On April 3, 2011, Complainant sent an email to M2 informing her that AS came up
behind him and put his hand on Complainant’s shoulder in a “claw-type hold.” Complainant
further claimed that when he tried to get AS to release the grip, AS commented “are you going
to hit me too?” M2 ordered a management inquiry. Three witnesses who were seated near or
next to Complainant could not substantiate the allegation that AS had placed a vice grip on
Complainant’s shoulder or that there had been any type of conversation. The inquiry
concluded that Complainant’s allegations of AS’s “claw-type hold” were unsubstantiated.

Additionally, in the April 3, 2011 email, Complainant informed M2 that AS had referred to
him and other African-American employees as “homeboy” and “brotha.” Management
conducted an inquiry into this allegation. The inquiry concluded that three out of five
employees confirmed that AS had addressed them using some form of the term “homeboy” or
“brotha;” however, only Complainant was personally offended. The inquiry determined that
AS had used the terms during friendly exchanges without any derogatory or discriminatory
intent. The inquiry noted that every witness interviewed, with the exception of Complainant,
indicated that AS was friendly and cordial, and seemed overall supportive of AS. Nonetheless,
management issued AS a Notice of Proposed Three-Day Suspension for inappropriate conduct.

On April 14, 2011, Complainant submitted an Employee Reassignment Request (ERR). The
ERR process allows employees to request lateral moves within the organization. If the
releasing organization can support it, and the requesting organization has a vacancy and selects
the individual as best qualified, then an employee is transferred. On April 19, 2011, the
District Manager informed Complainant that the request would remain on file for one year.
The unit was facing severe staff and certification shortages at the time, however, and
Complainant could not be released.

On June 12, 2011, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of race
(African-American), color (Black), and in reprisal for prior protected EEO activity as
evidenced by multiple incidents including, inter alia, management attempted to remove him
from assisting in a study of employees and union officials; he was called to cover a shift while
he was attending a midnight Easter mass in which his son was baptized; he was called into a
Weingarten meeting that was clearly set up to attack him; he was accused of falsifying
maintenance entries; he was summoned to a Weingarten meeting where he was questioned and
scrutinized about documenting his work; he received a proposed 45-day suspension, later
issued and reduced to 14 calendar days; the Acting ESU Supervisor came up behind him and
put a claw-type grip on his shoulder and said “Oh are you going to hit me too?”; the Acting
ESU Supervisor referred to him and other African-American employees as “Homeboy” and
“Brotha;” and his ERR was denied.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ granted summary judgment in favor of the Agency and issued a
decision without a hearing on September 11, 2014.

In the decision, the AJ initially determined that the alleged incidents were insufficiently severe
or pervasive to establish a hostile work environment. Further, the AJ found that the alleged
conduct at issue was not based on discriminatory or retaliatory animus. More specifically, as
to his claim that management attempted to remove him from assisting in a union and
management study, the record revealed that his name was on the list of participants.
Complainant was informed that his name was removed from and subsequently placed back on
the list. With respect to his claim that he was called to cover a shift while attending a midnight
Easter mass, the record reveals that Complainant voluntarily agreed to cover the shift after the
mass service ended. Moreover, the AJ noted that Complainant received overtime for working
the shift.

Regarding his claim that he was called into a Weingarten meeting in December 2010, the AJ
determined that Complainant was called in as a witness, based on his knowledge of the
situation. The AJ found that there was no attack on Complainant and his co-worker and the
inquiry concluded that there was no substantiation of the allegations. As to his claim that he
was accused of falsifying maintenance entries, the record revealed that the allegation was
sustained. The record further revealed that the falsification of the equipment maintenance
records was a result of Complainant’s lack of knowledge, not a willful act. The AJ noted that
the Weingarten meeting occurred on January 28, 2011, not January 31, 2011.

As to the events leading to his 14-day suspension, the AJ determined that there was no dispute
that the Instructor struck Complainant twice; that Complainant informed the Instructor that he
would hit him in the mouth if he continued; and that Complainant subsequently hit the
Instructor so hard that it injured his face and mouth. Complainant argued that he was the
victim of bullying by the Instructor. The AJ determined that the evidence revealed that
Complainant blatantly defied management’s instructions to walk away from a confrontation
with the Instructor. More importantly, the AJ noted that Complainant received a 14-day
suspension while the Instructor received a 30-day suspension.

With respect to his claim that AS came up behind him and gripped his shoulder with a claw-
type grip, the record revealed that AS tapped him on the shoulder as he did to the other
employees seated. Further, the record revealed that management investigated his claim that
AS referred to other African-American employees as “brotha” and “homeboy.” The
investigation revealed that some employees expressed concern that the terms could be
misunderstood, but only Complainant was personally offended. The AJ noted that AS received
discipline for his conduct, nonetheless.

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Finally, with regard to claim that his ERR was denied, the record is devoid of evidence that
this incident occurred. The record revealed that Complainant’s ERR was received and
acknowledged by the Agency, and that Complainant was notified that the ERR would remain
on file for one year.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently
issued a final order fully implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of
the Agency as material facts remain in dispute. Complainant argues that the AJ jumped to the
conclusion that Complainant was not subjected to a hostile work environment based on limited
evidence. Further, Complainant claims that he effectively presented sufficient evidence to
suggest he was subjected to a hostile work environment. Complainant contends that his
version of the alleged incidents differs from the Agency’s version, which necessitates a
hearing. Accordingly, Complainant requests that the Commission reverse the final order.

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.

Hostile Work Environment

To establish a claim of harassment a 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 employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove his harassment claim, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
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position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a
hostile work environment. Even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, Complainant failed to show that the Agency's
actions were based on discriminatory or retaliatory animus. For example, while Complainant
claims that someone in management attempted to remove his name for the Overland Resource
Group study, Complainant admits that his name was placed back on the list of participants.
ROI, at 74. Further, as to being called in while attending an Easter midnight mass, the record
reveals that Complainant agreed to come in and was paid overtime. Id. at 156. M2 noted that
employees are often called to cover open operational watches. Id. at 115.

With regard to the December 2010 Weingarten meeting, M2 stated that an inquiry was
conducted in response to a harassment allegation by one of Complainant’s co-workers. ROI, at
115. The co-worker named Complainant in the co-worker’s write-up; therefore, Complainant
was interviewed as part of the investigation. Id. at 116. M2 denied that anyone attacked
Complainant during the meeting and no further action was taken. Id. With respect to the
claims related to the maintenance records falsification allegation, M2 affirmed that
Complainant was questioned regarding why he signed documentation reflecting critical
equipment maintenance had been completed when the maintenance was identified as not being
done. Id. The record reveals that while the allegations of documentation falsification were
substantiated, Agency management recognized that Complainant simply required additional
training. Id. at 180. Complainant was given a Letter of Concern on the proper procedures
and processes for scheduling and completing maintenance tasks, and it suggested that he
complete additional training. Id.

As to the incidents related to the suspension, M2 confirmed that a management inquiry
concluded that Complainant had punched the Instructor in the face while in training in July
2010. ROI, at 117. The inquiry determined that witness statements supported a finding that
Complainant’s conduct violated Agency policy. Id. at 203-04. Management initially proposed
suspending Complainant for 45 days; however, the discipline was mitigated down to 14 days.
Id. at 120. Notably, management suspended the Instructor for 30 days for his role in the
altercation. Id. at 204.

Regarding AS’s usage of “homeboy” and “brotha,” management conducted an inquiry into the
matter and determined that, based on statements from witnesses, AS used the phrases only
during friendly exchanges, without any derogatory intent. ROI, at 305. Additionally,
management investigated Complainant’s claim that AS placed him in “claw-type grip” on his
shoulder during a retirement celebration. The inquiry concluded that, based on witness
statements, AS walked around the room patting individuals on the shoulder, but there was no
evidence that AS applied any extra pressure on Complainant’s shoulder. Id. at 304. Further,
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no witnesses corroborated Complainant’s claim that AS made an inappropriate comment. Id.
at 305. Nonetheless, management disciplined AS for inappropriate conduct. Id. at 328-30.
There is no evidence that AS engaged in any similar conduct.

Finally, as to his request for reassignment, M2 confirmed she had received requests over the
years from Complainant to transfer outside of the organization. ROI, at 119. M2 stated that
she was not able to release him for a transfer due to staffing and certification shortages in the
unit, which she communicated to Complainant. Id. Complainant was informed that his
request would remain on file for one year, through April 14, 2012. Id. at 381.

Construing the evidence in the light most favorable to Complainant, the Commission agrees
with the AJ that Complainant has not shown he was subjected to a legally hostile work
environment.2 Moreover, to the extent Complainant claims that he was subjected to disparate
treatment, the Commission finds that Complainant has not proffered any evidence from which
a reasonable fact finder could conclude that the Agency’s explanation was pretext for
discrimination or reprisal. As a result, the Commission finds no basis to disturb the AJ’s
summary judgment decision finding that Complainant was not subjected to discrimination,
reprisal, or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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:

2 The Commission notes that in his appellate brief Complainant mentioned an additional
incident regarding management accusing him of not picking up a pallet intended for someone
else. Complainant referenced this incident in his formal complaint; however, he admitted
therein that the matter was part of a prior EEO complaint. As the matter was not accepted as
part of Complainant’s hostile work environment claim nor raised before the AJ, the
Commission finds that the AJ did not err in not addressing it.
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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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).

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
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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

March 17, 2017
Date