Wilbert R.,1 Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Sep 8, 2016

0120143227 (E.E.O.C. Sep. 8, 2016)

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

Wilbert R.,1
Complainant,

v.

Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120143227

Hearing No. 541-2013-00097X

Agency No. 2013-24814-FAA-06

DECISION

On September 19, 2014, Complainant filed an appeal from the Agency’s August 22, 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 deems the appeal timely and accepts
it for de novo review. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND

Complainant had been removed from his position as an Aviation Safety Inspector (ASI) on
October 16, 2009 and reinstated him on August 1, 2011. Investigative Report (IR) 130, 140.
As a result of a settlement reached on December 6, 2011, Complainant was assigned to the
Rocky Mountain Certificate Management Office in Denver, Colorado, effective December 18,
2011. Investigative Report (IR) 140-43, 155-56. Terms 2b and 2c of the settlement agreement
specified that Complainant would be provided with all training necessary for him to complete
his assigned duties and would provide the initial course to aid him in gaining flight proficiency.
IR 141.

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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On January 5, 2013, Complainant filed an EEO complaint in which he alleged that the Agency
discriminated against him on the bases of race (African-American) and reprisal (prior protected
EEO activity) when he was denied the opportunity to attain his recertification as a Certified
Flight Instructor (CFI) on an ongoing basis between August 2009 and December 2011, and
again between June and July 2012. IR 59. In particular, he alleged that on June 26 and July 9,
2012, he could have had his CFI certification reinstated but was not given the opportunity to
do so. IR 59, 69-70. He identified his former second-line supervisor (FS2) and the Flight
Standards Division Manager, his then-current fourth line supervisor (S4) as the officials
responsible for the alleged repeated denials of his CFI certification. IR 59-60, 73.

FS2 did not provide an affidavit or sworn statement to the investigator. Complainant’s then-
current second-level supervisor (CS2) and S4 both averred that Complainant did not need CFI
certification in order to perform his assigned duties as an ASI, that there were no impediments
to Complainant obtaining CFI recertification, and that if he wanted to get his CFI status
reinstated, he would have to do so at his own expense, not the Agency’s. S4 noted that he was
the management official who signed the December 2011 settlement agreement with
Complainant, and that the agreement did not require that Complainant’s CFI status be
reinstated. IR 68, 70-71, 80-81, 143. When asked whether Complainant was denied the
opportunity to obtain CFI status on June 26 and July 9, 2012, CS2 replied that there was an
individual who was qualified to perform the recertification, but that this individual was in
training and had not been assigned the recertification function by his supervisor. IR 69-70.

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). Although Complainant timely requested
a hearing, the AJ assigned to the case granted the Agency’s May 5, 2014, motion for summary
judgment over his objections and issued a decision on July 29, 2014, without holding a
hearing. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating
that a “decision on an appeal from an Agency’s final action shall be based on a de novo review
. . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative
judge’s determination to issue a decision without a hearing, and the decision itself, will both be
reviewed de novo). This essentially means that we should look at this case with fresh eyes. In
other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s,
factual conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, § VI.A.
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The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to warrant a hearing on his claim of discrimination and reprisal,
Complainant would have to present enough evidence to raise a genuine issue of fact as to
whether S2 was motivated by unlawful considerations of his race or previous EEO activity in
connection with his alleged denial of Complainant’s flight instructor certificate between August
2009 and July 2012. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000). In circumstantial-evidence cases such as this, Complainant
can raise a genuine issue of material fact regarding motivation by presenting evidence tending
to show that the reason articulated by S2 for denying him his flight instructor certificate was a
pretext, i.e., not the real reason but rather a cover for discrimination and reprisal. St. Mary’s
Honor Society v. Hicks, 509 U.S. 502, 515 (1993).

When asked by the investigator what reasons management had given him for his CFI status not
being reinstated, Complainant responded, “only negative responses were given,” but did not
elaborate further. IR 59. When asked whether others were treated more favorably than he in
getting his CFI re-certified, Complainant responded that, to his knowledge, he was “the first
ASI ordered to be returned to duty by a federal judge” under the management of FS2 and S4.
IR 59-60. He gave the same answer when asked why he believed his race and prior EEO
activity were factors in his not having his CFI status being reinstated. IR 60. Beyond these
unsupported assertions, however, Complainant has not submitted any sworn statements from
other witnesses or documents that contradict the explanations provided by CS2 and S4 or
which call their veracity into question. We therefore agree with the AJ that Complainant has
not presented a genuine issue of material fact with respect to the motivation of the management
officials named by Complainant in his complaint in connection with his failure to obtain
recertification as a Flight Instructor.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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:
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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

September 8, 2016
Date