0520130614
01-08-2015
Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Request No. 0520130614
Appeal No. 0120114154
Hearing No. 450-2011-00115X
Agency No. 2010-23354-FAA-05
DENIAL
Complainant timely requested reconsideration of the decision in Complainant v. Department of Transportation, EEOC Appeal No. 0120114154 (June 14, 2013).1 EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(c).
At the time of events giving rise to the underlying complaint, Complainant worked as a Safety Inspector. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity when, effective May 3-7, 2010, his supervisor (S1) suspended him for failure to follow instructions.2
The appellate decision affirmed an EEOC Administrative Judge's (AJ) decision, without a hearing, finding no discrimination. Initially, the appellate decision found that the AJ appropriately issued a decision without a hearing. Next, the appellate decision found that the Agency articulated the following legitimate, nondiscriminatory reasons for suspending Complainant: (1) S1 informed Complainant and his coworkers that only an economy-sized rental car would be authorized for official travel, except under certain circumstances requiring prior approval; (2) upon completion of travel, Complainant submitted a travel voucher which reflected the cost of a larger-sized rental car; (3) S1 returned the travel voucher to Complainant and directed him to change it to reflect the cost of an economy-sized rental car; and (4) Complainant did not resubmit the travel voucher and continued to refuse to resubmit the travel voucher despite being directed to do so by S1. Finally, the appellate decision found that Complainant failed to prove, by a preponderance of the evidence, that the Agency's reasons were pretextual.
In his request for reconsideration, which he described as a "brief in support of his appeal," Complainant disputed the AJ's finding of no discrimination. First, Complainant argued that the AJ inappropriately issued a decision without a hearing. Specifically, Complainant asserted that the record was not adequately developed because he did not have an opportunity to respond to a document - a Douglas Factors Checklist pertaining to his suspension - before the EEO Investigator included it as part of the complaint file. In addition, Complainant asserted that he never received a statement of the allegedly undisputed material facts and therefore never had the opportunity to respond to such a statement. Moreover, Complainant asserted that there was a genuine issue of material fact regarding the treatment of comparative employees. Complainant noted that he was not reimbursed for his rental car at all whereas a Caucasian employee with no prior protected EEO activity (C1) was reimbursed for a larger-sized rental car and a Caucasian/Native American employee with prior protected EEO activity (C2) was reimbursed for an economy-sized rental car. Second, Complainant argued that the Agency violated his due process rights with respect to his travel voucher and his suspension, that it did so in order to retaliate against him for engaging in prior protected activity, and that the number of due process violations is probative of discrimination. Third, Complainant argued the Agency removed him from his position on July 9, 2013 and that the Agency's action was further evidence of reprisal.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request.
Regarding Complainant's first argument, we find that appellate decision did not clearly err in affirming the AJ's decision, after a hearing, finding no discrimination. Specifically, we find that the record was adequately developed because it was one that allowed a reasonable fact finder to draw conclusions as to whether discrimination occurred. See EEO MD-110, Ch. 6,
� I. In addition, we find that Complainant received a statement of the allegedly undisputed material facts as part of the Agency's motion for a decision without a hearing and had the opportunity to respond to such a statement in his response to the Agency's motion. Further, we find that C1 and C2 are not similarly situated to Complainant. Although Complainant focused on the rental car reimbursement, we note that the adverse action at issue was the suspension. The record reflects that S1 did not supervise C1 and that, unlike Complainant, neither C1 nor C2 failed to follow instructions for submitting their travel vouchers. See EEOC Compliance Manual Section 15, "Race and Color Discrimination," No. 915.003, n.50
(Apr. 19, 2006) (if an employee alleges that his race was a reason he was disciplined for misconduct, similarly situated employees should be identified who engaged in misconduct of comparable seriousness).
Regarding Complainant's second argument, we find that Complainant's allegation that the Agency violated his constitutional due process rights is outside of the purview of the Commission's regulations. See 29 C.F.R. � 1614.103(a); see also Harris v. Dep't of the Treasury, EEOC Request No. 05950984 (Dec. 16, 1997).
Regarding Complainant's third argument, we find that his July 9, 2013 removal postdated the appellate decision and was not at issue in the instant complaint. We advise Complainant to contact an EEO Counselor if he wishes to pursue a discrimination claim involving his removal.
We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. The decision in EEOC Appeal No. 0120114154 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__1/8/15________________
Date
1 On July 12, 2013, Complainant filed a request for reconsideration along with supporting documents. On September 10, 2013 and September 24, 2013, Complainant submitted additional supporting documents. A request for reconsideration must be filed with the Commission within 30 days of receipt of a decision of the Commission and the requesting party must submit any supporting documents at the time the request is filed. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VII.B (Nov. 9, 1999). Accordingly, we decline to consider Complainant's untimely September 10, 2013 and September 24, 2013 submissions.
2 Complainant also alleged that S1 directed him to no longer write any safety issues related to the designated smoking areas, denied his request for annual leave, asked him to provide a copy of his jury summons when he was called for jury duty, referred to him as a "problem child," announced that he was not meeting standards, subjected his work to heightened scrutiny, and changed his work assignments. The appellate decision found no discrimination with respect to those claims. We will not address them here, as Complainant's request for reconsideration focused on the events surrounding his suspension.
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0520130614
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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