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

Equal Employment Opportunity Commission

Jan 4, 2018

0120160172 (E.E.O.C. Jan. 4, 2018)

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

Warner A.,1
Complainant,

v.

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

Appeal No. 0120160172

Hearing No. 520-2012-00236X

Agency No. 2011-23858-FAA-01

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 14, 2015
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.2 The Commission’s review is de novo. For the following reasons, the
Commission AFFIRMS the final order.

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 Commission notes that Complainant included an additional complaint number (Agency
No. 2011-24228-FAA-01) in his appeal brief. That complaint number is associated with a
separate complaint and was never consolidated with this complaint by the Agency or the Equal
Employment Opportunity Commission Administrative Judge. As a result, the Commission finds
that any matters associated with Agency No. 2011-24228-FAA-01 are not properly before the
Commission, and this decision will not address them.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control
Specialist at the Agency’s N90 New York Terminal Radar Approach Controls (TRACON)
facility in Westbury, New York. Complainant transferred to the facility in January 2009.
Shortly after his transfer, Complainant was called into the Union office and given a letter from
the Union containing language referencing “blood money.” The reference to blood money was
referring to the Union’s opposition to the bid process in which Complainant had participated
where management selected and offered a money incentive to air traffic controllers to transfer to
New York. A co-worker received the letter. Complainant thought nothing of the letter initially
and did not complain to management because he knew management was aware of the Union’s
issue with the process. Complainant claims that the letter promotes a hostile work atmosphere.

Complainant alleged that in February 2009, two co-workers did not want him sitting next to
them, and one of the supervisors told him to sit at another empty scope. Complainant stated that
he was humiliated over the incident, but did not complain to management because he believed
supervisors would make excuses for the co-workers.

Complainant claimed that on about June 5, 2009, his trainer yelled at him and was abrasive and
condescending. Complainant stated that he complained about the situation to a supervisor who
reassigned him to another trainer the next day. Complainant’s second-level supervisor (S2) met
with both Complainant and the trainer and reminded them about the expectations for
professionalism and the roles of each person in the on-the-job instruction process.

On February 26, 2010, a snow storm prevented many employees from traveling to the facility.
Complainant was scheduled for an afternoon shift, but called to request and was approved to
work an earlier shift. A co-worker (CW-1) was expecting to work overtime; however, when
Complainant arrived, CW-1 was advised that he was being relieved. Complainant claimed that
CW-1 took it personally and stated, “payback is a bitch” as he walked by Complainant. Both
exchanged words and both later complained about the incident. Management investigated the
incident and issued both employees a memorandum advising them about the standards of
conduct while on duty.

On March 7, 2010, Complainant was working the final radar position when he and a co-worker
(CW-2) began arguing a sequence which the co-worker believed was delaying a lifeguard
aircraft. Complainant stated that he based this aircraft on approximately an eight-mile base leg
with no delay and everything worked out fine. Complainant did not complain to management
about the incident, but CW-2 submitted a statement to S2 about the incident. S2 reviewed the
operation and determined that, while a change in sequence was possible, the service provided by
Complainant was acceptable.

On March 26, 2010, Complainant alleged that the Controller-in-Charge (CIC-1) skipped over
him too many times for breaks. Complainant claimed that he complained to S2, but does not
believe any corrective action was taken. Management investigated the incident and determined
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that CIC-1 delayed Complainant’s break periods because one CIC’s shift had ended and the other
CIC had departed due to illness. CIC-1 had no choice but to wait for someone else to return
from lunch before Complainant could be relieved. S2 advised CIC-1 to inform the employee
waiting to be relieved when these situations occurred in the future.

Complainant alleged that his white, male co-workers made derogatory comments and false
statements about him in their statements about the incidents that occurred in February and March
2010. Complainant claimed that his co-workers attempted to depict him as an “angry Black
man” who was threatening.

On May 26, 2010, Complainant claimed that S2 blamed him for an operational error he did not
commit. Complainant stated that he looked at the playbook on the operational error and emailed
S2 about his obvious inaccuracies. Complainant claimed that following the email, S2 told him
he should not be charged with the operational error, but that he was a contributor to the error
because he did not monitor the position. S2 reviewed the operational error and determined that
Complainant was not assigned any blame for the error, but the review did indicate performance
issues that needed to be addressed. Complainant’s first-level supervisor (S1) later issued
Complainant a “technical training discussion” regarding the incident and the identified
performance issues.

In or around November 2010, Complainant alleged that the Controller-in-Charge (CIC-2) started
a confrontation with him because he thought Complainant came back from break late.
Complainant claimed that a supervisor was in the area, but did nothing to intervene.
Complainant did not report the incident to management.

On February 15, 2011, Complainant learned that he was not on the training schedule and was
omitted from being an on-the-job training instructor (OJTI). Complainant claimed that he made
numerous requests to train, and does not understand why management keeps assigning the same
employees to train new trainees.

On February 18, 2011, Complainant was working the Harp Radar arrival position while a co-
worker (CW-3) was working the Final radar position sitting next to him. Complainant alleged
that CW-3 accepted one of the two planes he had to hand off to him, but bluntly said “No” to the
second hand-off which caused a potentially unsafe situation to occur. Complainant claimed that
he emailed management about the situation, but did not receive a response. The incident was
reviewed by the Support Manager for Quality Assurance and was reported to the Accountability
Board for investigation. The investigation determined that CW-3 was too busy to accept the
hand-off from Complainant and that Complainant had sufficient time and airspace to contain the
aircraft until CW-3 could safely accept the hand-off. Complainant’s third-level supervisor (S3)
determined that there was no unsafe situation and no further action was warranted.

On February 20, 2011, Complainant alleged that CW-2 repeatedly pulled his headset out of the
jack and dropped it on the floor. Complainant complained to management, but claimed no action
was taken against CW-2. Management conducted an investigation into the incident and
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determined that CW-2 unplugged Complainant’s headset from the headset jack when
Complainant would not move back until CW-2 was ready to provide Complainant a briefing.
Complainant plugged his headset back in to the jack, and CW-2 again removed the headset from
the jack. Additionally, Complainant unplugged CW-2’s headset. S3 counseled both employees
as to expectations and how this situation should have been handled.

In March 2011, Complainant filed an Office of Workers’ Compensation Programs (OWCP)
claim and went out on leave for a medical condition. On May 4, 2011, S3 sent Complainant a
letter informing him that his period of Continuation of Pay (COP) would end on May 9, 2011,
and that if he was unable to return to work, he could request leave without pay (LWOP) or use
accrued leave. Additionally, S3 informed Complainant that he needed to submit updated
medical documentation. On June 10, 2011, S3 sent Complainant a second letter informing him
that updated medical documentation was still needed and that he had exhausted all of his sick
leave. S3 included the necessary forms for Complainant including an OPM 71 form for
requesting advanced sick leave. Complainant’s OWCP claim was later denied. Complainant
alleged that between July 2011 and September 2011, he was placed on LWOP and absent
without leave (AWOL) when he had sufficient leave to cover his absences. During the pay
periods in question, Complainant failed to submit timely requests for annual leave or the required
form for advanced sick leave before the cutoff time to process the payroll. Once the requests
were received, management made amendments to correct the AWOL and/or LWOP charges and
he was advanced the requested leave allowing him to be paid his normal pay.

On June 8, 2011 (and amended on October 11, 2011), Complainant filed a formal complaint
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of race (African-American), sex (male), color (Black), and in reprisal
for prior protected EEO activity as evidenced by multiple incidents including, inter alia, he
received a letter about “blood money;” he was not allowed to sit next to other controllers, but
was told to go to the empty scope; he was assigned to a trainer that yelled at him and was
abrasive and condescending; a co-worker started a confrontation with him because the co-worker
was no longer allowed overtime when Complainant came to work; the Controller-in-Charge
(CIC-1) wrote a false derogatory statement about what happened after Complainant attempted to
discuss why CIC-1 was intentionally skipping him for breaks; a co-worker started a
confrontation with Complainant while the supervisor did nothing to intervene; Complainant was
blamed for an operational error that he did not commit and later told he would be charged as a
contributor; CIC confronted Complainant because he thought Complainant came back late from
a break; Complainant was depicted as an “angry Black man;” another controller did not accept a
plane which forced Complainant to give the airplane “evasive maneuvers” and created a
potentially unsafe situation; Complainant learned he was not on the training schedule; a co-
worker pulled his headset out of the jack and dropped it on the floor; and Complainant was
charged absence without leave (AWOL) and leave without pay (LWOP) while out of work under
workers’ compensation when he had sufficient leave on the books to cover his absences.

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 EEOC
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Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the
case granted summary judgment in favor of the Agency, and issued a decision on July 6, 2015.

In the decision, the AJ determined that the record showed that Complainant was not treated well
in the workplace by his co-workers while management tolerated it. Even assuming that the
conduct at issue was sufficiently severe and pervasive, the AJ found, however, that there was no
evidence that the alleged incidents were based on Complainant’s protected classes. Instead, the
AJ concluded that the evidence in the record showed that the basis for the anger and
mistreatment of Complainant was around his Union membership as well as to his acceptance of
the position at the facility in exchange for a large monetary bonus, to which the Union objected.
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. Complainant argues that management covered up the harassment and blamed him for
actions he did not commit. Complainant claims that co-workers provided false and defamatory
statements against him and were not disciplined for their actions. Complainant contends that
CW-2 harassed him by criticizing how he sequenced airplanes and continually unplugging his
headset. Complainant notes that a witness observed the difference in treatment he received and
that the Union did not support his grievances. Complainant claims that the investigation was
incomplete as the investigator did not contact key employees and witnesses. Complainant argues
that he was harassed and treated differently than others who transferred to New York TRACON
on the “mega-bid.” Accordingly, Complainant requests that the Commission reverse the final
order.

ANALYSIS AND FINDINGS

As an initial matter, the Commission shall address Complainant's dissatisfaction regarding the
investigation of his complaint. Complainant claims on appeal that the investigation was
inadequate and incomplete. Upon review of the entire record, the Commission is not persuaded
that the investigation into Complainant's complaint was incomplete or improper. Complainant
has not presented any evidence of impropriety in the processing of his complaint. Thus, despite
the above referenced arguments, the Commission determines that the investigation was properly
conducted.

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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
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, the Commission finds that Complainant failed to show that
the Agency’s actions were based on discriminatory or retaliatory animus. For example, there is
no evidence that any management official was involved in the issuance of the letter that
referenced “blood money.” The record shows that the letter was issued by the Union and stated
its concerns about management’s selections of air traffic controllers under relocation incentives.
ROI, at 112-13. Complainant acknowledged that another employee who transferred under the
same process received the letter as well. Id. at 123. Regarding the incident with a trainer, S2
stated that an investigation was conducted into Complainant’s complaint that his trainer was
abrasive and condescending to him. Id. at 184. S2 confirmed that interviews and statements by
witnesses indicated that both employees were loud, used profanity, and were distracting to the
operation. Id. Several days later, management met with both employees and reminded them of
the expectations for professionalism and the roles of each person in the training process. Id.
Additionally, Complainant was given a new trainer.

With respect to the incident with CW-1, S3 affirmed that Complainant and CW-1 exchanged
words after Complainant arrived for an earlier shift to relieve CW-1 who was expecting to work
overtime. ROI, at 103-04. Both employees filed complaints regarding the incident, and the
Accountability Board was contacted. Following an inquiry, both employees received
memorandums stating that they were expected to comply with the Agency’s Standards of
Conduct and approach their duties in a professional manner. Id. at 128-29. As to the incident
with CIC-1, S2 explained that after reviewing the matter, he concluded that CIC-1 did not
intentionally skip Complainant for a break; rather, CIC-1 did not have coverage at the time to
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relieve Complainant. Id. at 186. S2 stated that he advised CIC-1 to communicate the situation
better with his co-workers in the future. Id.

Regarding CW-2’s comments about Complainant’s sequence, CW-2 reported to S2 that he
suggested a different sequence to Complainant regarding a lifeguard flight and that Complainant
became “extremely defensive towards him and launched into a [tirade] of obscenities.” ROI, at
187. S2 reviewed the situation and determined that Complainant’s service was acceptable, and
he took no action. Id. With respect to the operational error, S2 confirmed that on May 26, 2010,
an operational error occurred. S2 asserted that prior to the review being completed, it was
possible that Complainant could have been considered the primary cause of the error; however,
after reviewing the incident, Complainant was not assigned any primary or contributory blame.
Id. at 188. The review did uncover several performance issues that needed to be addressed, and
S2 instructed S1 to issue Complainant a Skill Enhancement Training Plan for those issues. Id. at
152-54, 188. Complainant was involved in another incident with CW-2 after CW-2 repeatedly
pulled Complainant’s headset out of the jack. Id. at 192. CW-2 was briefing another controller
that was taking over part of operation on a different position and CW-2 claimed that
Complainant would not move away. Id. Both employees were counseled. Id.

As to the incident with CW-3, S3 affirmed that investigation into the incident determined that
CW-3 was too busy to accept the hand-off from Complainant. ROI, at 108. Further, at the time,
Complainant was not busy, with only three aircraft under his control, and had sufficient time and
airspace to contain the aircraft until CW-3 could safely accept Complainant’s hand-off. Id. The
review concluded that there was no unsafe situation. Id. Management reviewed the event with
Complainant, and he was shown the radar replay of the event and his actions that led up to the
event were discussed. Id. Management ultimately decided that no further action was warranted
in this matter. Id. The Commission notes that there is no evidence to support Complainant’s
claim that co-workers attempted to depict him as an “angry Black man” in these incidents. Id. at
406.

With respect to the training schedule, S3 confirmed that Complainant’s training history revealed
that he did not meet the Agency-wide requirements for performing OJTI duties. ROI, at 108. S2
added that a review of Complainant’s training history disclosed that he had not been qualified to
perform OJTI duties since August 2001. Id. at 191. The next scheduled date for the course was
scheduled February 28 to March 2, 2011, and management removed Complainant from
operational duties to attend the training. Id. Complainant completed the course on March 2,
2011. Id.

Finally, with regard to the LWOP/AWOL charges, the Acting Office Manager explained that
Complainant was charged LWOP and/or AWOL during the pay periods in question because he
did not submit a request for annual leave or the required OPM Form 71 for advanced sick leave
before the cutoff to process the payroll. ROI, at 286-89. When the proper requests for leave
were received, management amended the timecards to immediately reverse the AWOL and/or
LWOP originally charged and he was advanced the requested leave, which enabled him to be
paid his normal pay. Id. at 289-90.
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The record is clear that Complainant had a contentious relationship with his co-workers;
however, the Commission notes that Title VII is not a civility code. Rather, it forbids “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). The record simply does not show
that the conduct at issue was based on animus towards Complainant's protected classes.

The Commission agrees with the AJ that Complainant has not shown that he was subjected to a
discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant
claims that he was subjected to disparate treatment, the Commission finds that, as discussed
above, Complainant has not proffered any evidence from which a reasonable fact finder could
conclude that the Agency’s explanation for its actions 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 (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
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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).

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.

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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

January 4, 2018
Date